Ch. GULZAR KHAN Versus SAGHIR AHMED

House/Khola measuring 15 Marlas bearing Khasra No.200 owned by petitioner No.1 Ch. Gulzar Khan was in possession of the respondents father Subedar Muhammad Alam. The petitioner obtained a decree for possession of the above said Khola/house against Subedar Muhammad Alam, who died during the pendency of the spit. The said decree dated 16‑1‑1986 of the learned Civil Judge do favour of the petitioner remained intact up to the Apex Court in Civil Petition for Leave to Appeal filed against the order passed, in Revision Petition No. 100 of 1993. The review petition filed by the respondent was also dismissed by the Hon'ble Supreme Court on 19‑10‑1994. Thereafter the petitioner obtained possession through execution.

2. Second round of litigation was started by the respondents by filing a suit for permanent injunction against the petitioner in the Court of Civil Judge, Rawalpindi in February, 1997. It was stated in the plaint that the plaintiff‑respondents are owner in possession of the plot measuring 7 Marlas, bearing Khasra No. 199 (new) No. 389 (old) situated in revenue estate of Tulsa Hardo, Tehsil Rawalpindi, and the suit plot measures East: 55, West: 60‑1/2, North: 49 1/2, South: 38 1/2 and its boundaries were also mentioned. The petitioner entered appearance in the Civil Court in the latter suit and filed a written statement. A local commission was appointed for spot inspection, who reported that the petitioner was in possession of his own area which he had acquired in the execution of the decree. Further objections that the suit is absolutely false, frivolus and was aimed to re‑open a decided case to nullify the effect of earlier adjudication of rights of the parties up to the level of the Supreme Court of Pakistan. During the pendency of the said suit, the learned Civil Judge recorded the statement of the petitioner on 15‑3‑1997 as under:‑‑

In pursuance of the aforesaid statement of the petitioner, the learned Civil Judge disposed of the suit in the following way:‑‑

3. Thereafter the respondents filed an application under Order XXI, rule 32 C.P.C. alleging therein that the petitioners are raising construction on the land bearing Khasra No. 199, and thereafter the respondents filed an application for appointment of a local commission for demarcation. The learned Civil Judge vide the impugned order dated 22‑1‑1998 appointed Naib Tehsildar (Halqa) as local commission for conducting demarcation. In the intervening period, an application for grant of temporary injunction remained pending and finally through an order passed in Writ Petition No.2888 of 1997 a direction was issued to the trial Court to decide the application under Order XXI, rule 32 C.P.C. within three months from 14‑1‑1998 by holding day‑to‑day proceedings. It was further directed that the trial Court will also determine the question regarding maintainability of the petition.

4. The order of appointment of the local commission dated 22‑1‑1998 was challenged by the petitioner by way of filing a revision petition before the District Judge, Rawalpindi, and the learned Additional District Judge vide order dated 18‑3‑1998 dismissed the revision petition. The order of appointment of the local commission dated 22‑1‑1998 and of the learned Additional District Judge dated 18‑3‑1998 is the subject‑matter of the instant writ petition. It is important to note here that during the pendency of the revision petition, the local commission also visited the site, which is, of course, subject to legal objections raised by the petitioner.

5. The controversy between the parties is regarding the powers of the Executing Court to appoint local commission vide its order dated 22‑1‑1998.

6. The learned counsel for the petitioner on the strength of. Order XXVI, rule 9 C.P.C. contends that the Civil Court had no jurisdiction to appoint Naib Tehsildar as local commission in the execution petition under Order XXI, rule 32 C.P.C: filed by the respondent. Further contends that the latter suit was filed by the respondent after adjudication of rights of the parties by the Courts up to the Supreme Court of Pakistan. The second suit as well as the application under Order XXI, rule 32 C.P.C. was filed with an ulterior motive to set at naught the valid decree passed in favour of the petitioner which was maintained by the apex Court.

7. On the other hand, it is contended by the learned counsel for the respondents that the order dated 22‑1‑1998 of appointment of the local commission has become final because the order does not fall within the expression `Case Decided' appearing in section 115 C.P.C. and in this view of the matter the revision petition before the learned Additional District Judge was not competent. Adds that the order of appointment of the local commission as well as of the learned Additional District Judge dismissing the revision petition of the petitioner was within jurisdiction of the Court and orders cannot be termed as orders without jurisdiction therefore the petition under Article 199 of the Constitution of the country is not maintainable. Reliance is placed on the case reported as Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 SC 131). Further contends that the Civil Court had the powers to appoint the local commission under Order XXI rule 32(5) C.P.C. Further states that the trial Court disposed of the suit of the plaintiff‑respondent for permanent injunction on the statement of the defendants that they had nothing to do with the ownership of the land in question and had no intention to in terfere with the plaintiffs' possession therefore the undertaking given by the petitioners defendants having been acted upon by the trial Court, the same for all practical purposes is just like a decree for permanent injunction issued by a Court and for non‑observance of the undertaking the proceedings under Order XXI, rules 32 C.P.C. could have been initiated and the plaintiff in such a circumstance was not required in future to file a fresh suit to safeguard his rights because the undertaking given before the Court in such regard is tantamount to stay order as held in the case reported as Muhammad Ashiq alias Ashiq Ali v. Razia Begum and others (PLD 1982 Lahore 459).

8. In rebuttal, the learned counsel for the petitioner on the strength of the case reported as Muhammad Khan and 6 others v. Mst. Ghulam Fatima and others (1991 SCMR 970) and Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 SC 65) contends that there is no absolute rule that if an illegality is committed or the order of the Court below is without jurisdiction or coram non judice this Court cannot interfere in it. He further states that no mandatory injunction or direction was issued through the order dated 22‑1‑1998 which was passed on the statement of the petitioner therefore the provisions of Order XXI, rule 32(5) C.P.C. are not attracted.

9. On examination of the record it reveals that the decree for possession dated 16‑1‑1996 obtained by the petitioner was maintained up to Supreme Court of Pakistan. The petitioner obtained the possession through the execution of the decree. In the second round of litigation, on the statement of the petitioner and his learned counsel the suit for permanent injunction filed by the respondent was disposed of on 15‑3‑1997. Thereafter petition under Order XXI, Rule 32 C.P.C. was filed by the respondent and through the order of the Court dated 22‑1‑1998 Naib Tehsildar (Halqa) was appointed as local commission.

10. Before I proceed to decide the question of maintainability of this petition, I would dilate upon the controversy regarding powers of the trial Court to appoint Naib Tehsildar (Halqa) as local commission as the petitioner contends that this order was passed without jurisdiction as the provisions of the above Order apply only to the suit and do not apply to the proceedings in execution. It is not disputed that the application under Order XXI rule 32 C.P.C. is a proceeding, in execution. Relevant, provision of Order XXVI, rule 9 C.P.C. reads as under:‑‑

9. Commission to make local investigations. ‑‑‑In any suit in which the Court deems a local investigation to be requisite or proper for the purpose or elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such persons as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the Provincial Government has made rules as to the persons to whom such commission shall be issued the Court shall be bound by such rules.

In case reported as Ayanampudi Venkayya v. Lanka Rattayya (A.I.R. 1939 Madras 578) while interpreting the Order XXVI rule 4 C.P.C. it has been held that the provision of Order XXVI rule 4 are not applicable to execution proceedings and have not been made so by section 141. This rule in its language empowers a Court to issue a commission in any suit. The learned counsel for the respondent contends that by section 141 C.P.C. the provisions of the above rule are made applicable to proceedings in execution. Section 141 C.P.C. reads as follows:‑‑

"The procedure provided in this Code in regard to suits shall be followed, as for as it can be made applicable, in all proceedings in any Court of civil jurisdiction. "

11. There is no cavil with the proposition that the Executing Court is not a Court of civil jurisdiction. In case reported as Thakur Prasad v. Fakirulla (1895) 17 All. 106, their Lordships of the Privy Council at page 111 said that: "the whole Chapter 19 of the Code consisting of 121 sections, is devoted to the procedure in execution, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in section 647 include original matters in the nature of suits as proceedings in probates, guardianships, and so forth, and do not include executions."

The above stated case was decided under the provisions of old Indian Code of Civil Procedure in which Chapter 19 corresponds to Order XXI and section 647 to the present section 141. The wording of section 647 is, although slightly different to the same effect, and it is as follows:‑‑

"The procedure herein prescribed shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction other than suits and appeals. "

12. In case of Burhanuddin Ahmad and others v. Veda Brata Chakraborti and others (PLD 1964 Dacca 661) while interpreting the provisions of Order XXI, rule 32 (5) C.P.C. it was observed that:‑‑ "clause (5) of rule 32, Order XXI, C.P.C., makes the specific provision when by the decree of the Court it is required that an act is to be done and in case of failure of performing the act required to be done by the judgment‑debtor but the same may be done so far as practicable by the decree‑holder or some other persons appointed by the Court. So, apparently clause (5) has no bearing to or connection with the case of a prohibitory injunction order."

The learned counsel for the respondent has relied on the case reported as Birgis Jahan Bajiga Malik v. Muhammad Hasan and others (PLD 1964 Dacca 202) and Muhammad Ameer Qasmi v. Ch. Muhammad Azhar (1990 CLC 1514 Lahore). In the former referred case, while interpreting the provisions of Order XXI rule 32 C.P.C., it was ruled that "if relief for possession not prayed for and consequently decree passed in suit also silent as to delivery of possession‑‑Notwithstanding such omission Executing Court not debarred from granting relief of possession.

13. In the above referred two cases, it was the decree of specific performance which was executable under Order XXI rule 32 C.P.C. and as a natural corollary Order XXI, rule 32(5) C.P.C. was also made applicable, which is not the position in the case in hand, because for intents and purposes the statement of the petitioner and his learned counsel in the latter suit could only tantamount to stay order as held in Muhammad Ashiq's case (PLD 1982 Lahore 459). In the case of Muhammad Hussain and others v. Muhammad Aslam (1998 SCMR 151) the provisions of Order XXI rule 32 clauses (1), (2), (3) and (5) came up for interpretation and it was ruled that the decree‑holder on the breach of the prohibitory order under the rule is not entitled to any specific relief; yet it does not mean that the judgment‑debtor can escape penalties and consequences of breach of decree for injunctions. Clauses (1) to (3) apply to both classes of injunction but clause (5) has no application in the case of simple prohibitory injunction.

14. On the touchstone of the provisions of Order XXVI rule 9, read with rule 10 C.P.C. I am constrained to hold that the learned Civil Judge had no jurisdiction, to appoint the Naib Tehsildar as local commission on the application of the respondent in the execution proceeding under Order XXI rule 32 C.P.C. Similarly, Order XXI rule 32 (5) C.P.C. also is not applicable because neither there is a decree for specific performance nor for mandatory injunction in favour of the petitioner. This being the position, the order of the learned Civil Judge dated 22‑1‑1998 appointing the Naib Tehsildar as local commission was without jurisdiction and therefore was without any lawful authority, and the same is set aside.

15. This brings me to decide the objection raised by the learned counsel for the respondent that the writ petition against the revisional order is not competent as held in the case of Noor Muhammad Khan (PLD 1985 SC 131). I have already observed that the o0er.of the Civil Judge for appointment of the Naib Tehsildar as local commission was beyond his jurisdiction and since through the impugned order the learned Civil Judge after judicially considering the case of the parties and stated facts has given as decision, this decision need not necessarily dispose of the whole matter or suit pending before the subordinate Court. The phrase `case decided' appearing in section 115 C.P.C. came up for interpretation before the Honourable Supreme Court in the case reported as Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others (PLD 1973 SC 507), in which case the application for amendment of plaint and impleading new defendants was dismissed by the trial Court and it was held that though the whole suit was not disposed of yet the Court had given decision in respect of any state of facts after judicially considering the same therefore the same falls 'under the expression "case decided" and the revision petition was held to be competent. In the case reported as Muhammad Khan and 6 others v. Mst. Gulam Fatima and 12 others (1991 SCMR 970) and Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 SC 65) where their Lordships have taken note of the earlier judgment in the case of Noor Muhammad (PLD 1985 SC 131) and observed that where the orders of the Courts below are without jurisdiction and coram non judice the same can always be interfered with by the High Court in exercise of its Constitutional jurisdiction under section 199 of the Constitution of Islamic Republic of Pakistan, 1973. Before parting with this judgment. I may observe that the statement of the petitioner‑defendant in the later suit is tantamount to stay order as held in the case of Muhammad Ashiq alias Ashiq Ali (PLD 1982 Lahore 459) the violation of which is cognizable under Order XXI, rule 32 C.P.C., Though the order of appointment of the local commission date 22‑1‑1998 in exercise of provisions of Order XXVI, rules 9 and 10 C.P.C. and Order XXI, rule 32(5) C.P.C. has been declared to be without lawful authority, yet the trial Court has jurisdiction to pass any order for committing the contemner in prison .by exercising jurisdiction under Order XXI, rule 32 (1) and (2) C.P.C. and restoring possession if it is proved that the said order has been violated.

With the above observations, this petition is disposed of.

M.H./G‑334/L Order accordingly.