ABDUL BAQI Versus MITHA KHAN
This matter arises from a petition for leave to appeal directed against the judgment of the High Court dated 27-3-1990, which dismissed an objection petition filed under section 12(2) of the Code of Civil Procedure 1908 concerning eviction proceedings in the Tribal Area. The core legal question revolves around whether Article 247 of the Constitution of Pakistan 1973 was attracted when Ordinance X of 1980 was promulgated by the C.M.L.A. under the Laws Continuance in Force Order 1977, and whether the Civil Procedure Code (Amended Ordinance X of 1980) applied to the Tribal Area without specific extension under Article 247(3). The Supreme Court held that a substantial point of constitutional interpretation requiring examination by a larger bench was involved, thereby granting leave to appeal. However, the Court declined to grant interim relief of status quo regarding possession, noting that the petitioner had full knowledge of the prior eviction proceedings yet failed to seek impleadment in a timely manner.
- Whether Article 247 of the Constitution of Islamic Republic of Pakistan was attracted when the C.M.L.A. promulgated Ordinance X of 1980 under the Laws Continuance in Force Order, 1977?
- Whether the High Court erred in holding that the Civil Procedure Code (Amended Ordinance X of 1980) was not specifically extended to the Tribal Area?
- Can interim relief in the nature of status quo be granted to a petitioner who had full knowledge of eviction proceedings but failed to seek impleadment as a party?
- Section 12(2), Code of Civil Procedure 1908
- Article 247, Constitution of Pakistan 1973
- Article 247(3), Constitution of Pakistan 1973
- Laws Continuance in Force Order, 1977
ORDER
ABDUL QADEER CHAUDHRY, J. ‑‑‑Leave to appeal has been sought against the judgment of the High Court dated 27‑3‑1990.
2. The facts, in brief, are that an eviction application was filed by the respondent No.1 Malik Mitha Khan against respondent No.2 Ghulam Muhammad, the brother of the petitioner, on 18‑3‑1988. The application was accepted by the Civil Judge, Loralai on 30‑3‑1989. The Civil Revision Petition filed by the respondent No.2 was dismissed by the High Court on 23‑5‑1989. The petitioner Abdul Baqi filed an objection petition under section 12(2) of the Code of Civil Procedure on 10‑7‑1989 before the High Court which was dismissed on 27‑3‑1990. The High Court has held that the Civil Procedure Code (Amended Ordinance X of 1980) has not been extended to the Tribal Area because law can be extended in accordance with Article 247(3) of the Constitution therefore the application under section 12(2) of the C.P.C. was not maintainable. The following point of law needs examination by this Court:‑‑
Whether Article 247 of the Constitution of Islamic Republic of Pakistan was not attracted to the facts of the case when the C.M.L.A. in exercise of his powers under the Laws Continuance in Force Order, 1977 (Order No.1 of 1977) had promulgated the Ordinance X of 1980; and whether the High Court erred in holding that Ordinance X of 1980 was not specifically extended to the Tribal Area.
3. It is a case of first impression that a point of constitutional interpretation is involved in this petition. Leave is granted and the matter may be placed before a larger Bench for resolving the aforesaid question. Security Rs.5,000.
4. Learned counsel has also submitted that pending hearing of this appeal, status quo with regard to possession may be maintained.
5. The order of the High Court shows that the petitioner had full knowledge about the pendency of the eviction proceedings. On certain occasions he had also submitted application on behalf of respondent No.2 seeking adjournment of the case. The contention of the petitioner in his application under section 12(2) of the C.P.C. is that he was a tenant in the suit premises for the last 10 years according to the tenancy agreement executed on 19‑3‑81. It may be pointed that the respondent No.1 had filed ejectment application against the respondent in 1988. Though the petitioner had the knowledge of those proceedings he did not submit any application for impleading him as a party to the said proceedings. We, therefore, in these circumstances, decline to grant interim relief to the petitioner.
A.A./A‑761/S Leave granted.