MUHAMMAD YOUNUS Versus GOVERNMENT OF PAKISTAN through Chief Secretary N.As. Gilgit
SYED JAFFAR SHAH, J .---This appeal by leave of this Court is directed against the judgment dated 10-5-2008 passed by Single Bench of Northern Area Chief Court in C.S.A. 8/2005 in exercise of its revisional jurisdiction converting the appeal into civil revision whereby setting aside the concurrent findings of two Courts below, and remanding the suit for its disposal on merit after framing some more issues and adducing evidence, the operative part of the judgment impugned is as under:---
The upshot of the above discussion is that the impugned decrees passed by the both the lower courts are set aside and the case is remanded to trial Court to give chance to the parties to adduce oral evidence, after framing more issues as the above framed issues are insufficient to solve the real controversy between the parties. At the end, the learned trial Court is strictly directed to deal the matter on priority basis to expedite the trial for the reason, the parties have suffered a lot of time for wrong done by trial Court. No orders as to cost.
The brief facts leading to the present matter are as under:---
1. That the appellants/plaintiffs filed a suit for declaration and injunction in the Court of Civil Judge 1st Class Skardu contending therein that they were owners of piece of land measuring 3 kanals in Mouza Astana Skardu by virtue of mutation Nos.281 and 282 attested on 11-2-1985 but later on this land was acquired by the Government for public purpose under Land Acquisition Act but till 1998 no compensation whatsoever was paid to them, resultantly they approached the office of Federal Ombudsman for redress of their grievances and on intervention of Federal Ombudsman the suit property was given to them instead of paying any compensation etc.
2. The appellants/plaintiff were put into possession of suit property and mutation was also effected in their names, they also developed the land by incurring huge expenditure but later on the Collector Skardu, respondent No.2 without issuing any notice and affording any chance of hearing one sidedly cancelled the mutation effected in the name of appellants vide order dated 10-1-2002.
3. The defendants/respondents through their joint written statement dated 2-12-2003 denied the claim of appellants and contended that the disputed land is in possession of forest department and the department has planted trees thereon and moreover the mutation effected in the name of plaintiffs/appellants was not proper as such it was rightly cancelled by Collector, respondent No.2.
4. That out of the pleading of the parties the trial Court framed various issues and opted to decide the matter under Order XV rule 3, C.P.C. without recording oral evidence vide order dated 9-4-2004 as according to trial Court the record produced by the parties was sufficient to reach at a proper conclusion.
5. That the trial Court vide judgment dated 4-4-2005 granted decree in favour of the plaintiffs/respondents which was maintained by the District and Sessions Judge Skardu, in 1st Appeal. However, the learned Member Chief Court Northern Areas reversed the findings of both the courts below and remanded the case for its disposal afresh as stated supra.
6. We have heard the learned counsel for the parties and perused the available record with care and caution, the counsel appearing for petitioners while supporting the decree contended that Order XV, Rule 3, C.P.C. has vested a power to trial Court to pass a decree if the court is satisfied that material produced by the parties is sufficient and no further evidence or arguments are required to decide the matter in issue it can pronounce judgment accordingly. They further submitted that material produced by the parties was sufficient to decide the matter as such no oral evidence was required to be adduced. They also added that the defendants/respondents even did not challenge the order dated 9-4-2004 till disposal of the suit as such they are stopped by their conduct to raise any objection in this regard at a belated stage.
7. The Advocate-General appearing on behalf of the appellants/ defendants mainly contended that the trial Court has illegally exercised its jurisdiction under Order XV, Rule 3, C.P.C. by denying the rights of defendants to produce oral evidence as such decree passed by trial Court is nullity in the eyes of law.
8. We have given our anxious consideration to the contention of learned counsel for the parties and perused the record, from available record it transpires that a piece of land measuring 3 Kanal was allotted in the name of petitioners Nos.1 and 2 and mutation to that effect was attested vide mutation Nos.281, 282 on 11-2-1985 and it is also admitted fact that in lieu of the 3 Kanal land, the land in dispute was allotted to petitioners Nos.1 and 2 who later on transferred the same to petitioner No.3.
9. On the other hand the defendants/respondents have failed to bring any material on record showing their title in respect of such property the learned Advocate-General and the representatives of the respondents present in Court when confronted, failed to satisfy the Court about their title however they contended that the land in dispute is required for forest department for beautification of city and in lieu whereof the respondents are ready to provide alternate piece of land in Skardu City. This contention of the respondents is neither logical nor valid as there is a specific law for acquisition of land for welfare of public or Government purpose. The respondents may acquire any land, if it is needed for public purpose by paying compensation in accordance with the provision of Land Acquisition Act, but they cannot be allowed to adopt a novel procedure of providing alternate land without the consent of the owners of land i.e. petitioners.
10. So far as the next contention of the respondents regarding power of the civil court to dispose of a matter under Order XV, rule 3, C.P.C. without recording evidence is concerned. We have given our due consideration to the contention of learned counsel of the parties and perused the record. It is better and appropriate to re-produce the relevant provisions of Order XV, C.P.C. to resolve the controversy between the parties.
ORDER XV
Disposal of the suit at the first hearing.
3. parties at issue .---(1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the court as hereinbefore provided, if the court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.
11. A careful reading of above provision of law shows that a civil court after framing of the issues if satisfied that further arguments or evidence are not required the Court may proceed to determine such case and if findings are sufficient for the decision may pronounce judgment accordingly.
12. The first proviso of rule 3(1), C.P.C. Of Order XV, C.P.C. further makes it clear. "Provided that, where the summons has been issued for the settlement of issues only, the parties and their pleaders are present and none of them objects".
13. In the case in hand the trial Court framed issues on 9-4-2004 in presence of the parties and their counsel and at the same time the trial Court passed order as under:---
"Parties along with their counsel present, issues have been framed. Perusal of the case shows that the documentary evidence produced by the parties are sufficient to dispose of all issues in case and I do not feel it necessary to record oral evidence in the case. Hence I am going to proceed under Order XV, rule 3, C.P.C., case to come up for on 22-5-2004 for arguments".
14. It is evident from record that thereafter the case was adjourned for almost 15 consecutive dates for argument but the respondents neither on 9-4-2004 when the above order was passed nor on any subsequent date raised any objection nor they showed any desire to adduce their evidence rather remained silent and kept waiting for a favourable judgment till 4-4-2005 and when the findings of the Court came against their expectation they challenged the decree. It is true that adducing of evidence is right of a party but the court cannot compel or drag a party for production of evidence. Moreover the wisdom behind enactment of provision of Order XV, rule 3, C.P.C. is to early disposal of the case on strength of documentary evidence and to save the precious time of the Court and saving protraction of unwarranted litigation. Moreover all the issues framed by the trial Court were legal which go into the root of the subject-matter and did not involve question of facts.
15. The findings of the Single Judge of the Northern Areas Chief Court regarding illegal exercise of powers of trial Court are not based on sound reasoning rather the same are based on erroneous reasoning and incorrect exposition of law as such we do not agree with the findings of learned Single Bench of Chief Court.
The upshot of the above discussion is that the present appeal is allowed, the judgment dated 10-5-2008 passed by the Single Judge of Northern Areas Chief Court set aside, while the judgment and decree passed by Civil Judge Skardu and maintained by District Judge, Skardu are restored.
M.H. / 12/Glt. Appeal allowed.