2017 P Cr (PLP)

AMER RAZA NAQVI, J.

Through these proceedings applicant has challenged the order dated 18-12-2014, whereby application under section 7 of Illegal Dispossession Act, 2005 filed by respondent No.2/complainant before the trial Court was allowed, consequently accused persons before the trial Court were directed to hand over the possession of the property subject matter of proceedings before the trial Court to the complainant/owner of the property within period of 15 days. Learned counsel for the applicant and learned counsel for the respondent No.2 and learned A.P.G. have submitted their respective arguments and also agreed that since matter has been heard at length it can be disposed of at katcha peshi stage. Learned counsel for the applicant submits that earlier application filed under section 7 was allowed by the trial Court which order was challenged and in those proceedings a consent order was passed by this Court and the matter was remanded back to the trial Court to pass fresh order after framing of charge. Learned counsel for the parties submit that this order was passed in view of the submission of learned counsel that such application can only be decided once the charge is framed. Learned counsel for the applicant submits that after framing of charge the same order has been passed which shows that no fresh application of mind was undertaken by the trial Court while passing the impugned order. In support of this application he further argued that applicant and respondent No.2 entered into an agreement along with other owners of the land in question and consideration was paid to them except amount of Rs.200,000/- approximately and possession was handed over to the applicant party in the year 2007. He further submits that report was called from the SHO and Mukhtiarkar concerned before framing of charge and in such reports nowhere it is mentioned that respondents were ever dispossessed from the property. He also submitted that both the officials on the contrary have confirmed that applicant party is in possession of the property in question since 2008. He submitted that when the agreement was not honoured by the owners of the land and instead proceedings under sections 3 and 4 of the Illegal Dispossession Act, 2005 were filed before the trial Court a civil suit was filed by the applicant party which is pending before the Civil Court. Learned counsel has referred the impugned order and submitted that nothing has been mentioned in the impugned order about the fact that at what time the complainant in the proceedings before the trial Court was dispossessed. He further submitted that the application under section 7 was allowed on the ground that ownership documents are in favour of the complainant before the trial Court. He submits that, that is not disputed and in fact that was the reason that civil suit was filed. He further submits that after receiving of notices applicant party has appeared and filed sale agreement, legal notice and copies of the civil suit. Learned counsel has pointed out the observation in the impugned order that no reply of these documents was filed by the complainant of the proceedings before the trial Court. He further submits that even at the time of arguments and till today such denial was not made. However, today learned counsel for the respondent has denied that such legal notice was issued on behalf of his client. Learned counsel further submits that all the case law which is referred by the trial Court is in respect of civil proceedings and none is in respect of the matters of Illegal Dispossession Act 2005. Learned counsel for the applicant has filed case diaries, copy of which was supplied to the other counsel and submitted that record shows that the trial Court is not proceeding with the trial and therefore, has violated subsections (2) and (3) of section 5 of Illegal Dispossession Act, 2005. Learned counsel submits that even during the pendency of present proceedings matter could have been concluded by the trial Court but trial Court is reluctant to proceed on merits. On the other hand learned counsel for respondent No.2 has argued that there is no title document in possession of the applicant and they are encroachers on the property of respondent No.2. He further submits that it is not a disputed fact that all the ownership documents are in the name of respondent No.2. He also referred page 7 of the impugned order and submits that dhall receipts showing that the same is being paid from the year 2010/2011 by respondent No.2 was produced before the trial Court. He submits that when there is prima-facie case and charge has been framed under section 7 of Illegal Dispossession Act, possession of the property should be returned back to the complainant and then matter is to be proceeded. He submits that he has no objection to the early trial of the proceedings but impugned order should be complied with first. Learned counsel for the respondent No.2 goes on to submit that police did not co-operate with the complainant and did not register the FIR and is mixed-up with the applicant party and therefore no other proceedings could be filed and remedy provided under Illegal Dispossession Act, 2005 was opted by the complainant. He submits that trial Court is not bound to rely on the reports called by the Court and submitted before it by the officials. He however submits that report of SHO shows that the land was occupied by the applicant party. He submits that even the report of Mukhtiarkar clearly shows that in the record of rights land still is in the name of respondent No.2 and therefore, the purpose of the Illegal Dispossession Act, 2005 shall be fulfilled if before proceeding with the matter and recording of evidence property is handed over to respondent No.2 as has been ordered by the trial Court. He submits that there is no illegality in the impugned order therefore, the same should be maintained. He further submits that the delay has been caused by the applicant as applicant has avoided to proceed with the matter before the trial Court and also remained absent on many dates of hearing. He has relied upon 2007 PCr.LJ 918, 2010 PCr.LJ 1128, 2010 PCr.LJ 1334, 2010 MLD 1920. Learned A.P.G. has supported the case of respondent No.2 and submits that there is no illegality in the impugned order and therefore, same should be maintained. He further submits by referring typed page 7 of impugned order and argued that the civil suit was filed subsequent to these proceedings, therefore, it does not affect in any way proceeding filed under Illegal Dispossession Act, 2005. He has also referred page No.107, para 6 of the plaint filed by the applicant and submits that there is contradictions in the stand of the applicant with regard to the payment made in respect of the land in question. He submits that during investigation applicant had submitted before SHO on 4.3.2012 that entire consideration has been paid to respondent No.2 such stand is contradictory with the contention made in the plaint itself. He submits that it is appropriate that trial Court should be left to exercise its power under section 7 of the Act before concluding the proceedings. He has relied upon PLD 2007 SC 423, 2009 PCr.LJ 1359 and 2007 PCr.LJ Lahore

181. I have heard all the learned counsel. It is a fact that civil proceedings were filed after institution of proceedings before the trial Court and therefore, those proceedings do not bar the proceedings under Illegal Dispossession Act, 2005. It is also not disputed that application under section 7 is to be entertained during the trial as provided under section 7 of the Act but in the present case it is to be examined that whether respondent No.2 was dispossessed by the applicant for the purpose of application under section 7 as well as the basic requirement for maintainability of the proceedings as mentioned under section 3 of the Act as section 7 makes it clear that once the trial begins only then the applicability of the section 7 comes into question and therefore, it is also a relevant fact for the purpose of section 7 that Court should satisfy itself before allowing such application that dispossession has taken place. An application under section 7 can be allowed during a trial when the Court is satisfied that a person is found prima facie to be not in lawful possession and in such a situation owner or occupier as the case may be can be put into possession by a direction to the person who is not found in lawful possession. In the impugned order it is not mentioned anywhere that the Court was satisfied and prima facie felt that respondent No.2 was dispossessed from the property in question. At page No.7 in second para trial Court has observed that dhall receipts were produced by complainant/respondent No.2 in these proceedings and applicant in these proceedings has not filed any document except sale agreement and legal notice. It is however, observed at page 5 that complainant has not replied the objections and not disputed the documents which were annexed with their objections through filing rejoinder. At page 8 of the impugned order in first para in 6th line the observation of the trial Court was to the extent that accused persons have occupied the property there also the trial Court has not observed that at any time respondent No.2 was dispossessed from the property. The case law relied upon by the trial Court is not in respect of Illegal Dispossession Act and such reliance was placed on the case law which is in respect of civil suits. The trial Court in its own proceedings should be satisfied that there is sufficient material on the basis of which application under section 7 should be allowed. 2007 PCr.LJ 918, 2010 PCr.LJ 1128 are not in respect of proceedings under section 7 of Illegal Dispossession Act, 2005. The facts and circumstances in 2010 PCr.LJ 1334 are different from the present one in such case law property was occupied during a restraining order and therefore, protection granted to respondent No.1 in those proceedings was violated and it was therefore observed that appellant violated the order of learned Civil Court whereby appellant was restrained to interfere with the possession of respondent No.1 and therefore appeal filed before Lahore High Court Lahore by the appellant was dismissed in the circumstances. The facts and circumstances in 2010 MLD 1920 are also different in that case the Court observed that nothing could be pointed out which could be termed as error or illegality in respect of the order impugned. In the present case sufficient material was not available before the learned trial Court which could justify allowing of application filed under section 7 of Illegal Dispossession Act, 2005 which was allowed through impugned order. Therefore, in the above facts and circumstances this criminal revision application is allowed. Impugned order dated 18.12.2014 is set aside. However, it is made clear that any observation made in this order shall not in any way influence the learned trial Court for the purpose of trial in the matter or exercise of power under section 7 also in case sufficient evidence is produced by the complainant to justify passing of any fresh order under section 7 of Illegal Dispossession Act, 2005 as during the trial at any time if sufficient material comes before the Court justifying exercise of power under section 6 or 7 of the Act Court can exercise powers under section 6 or 7 of Illegal Dispossession Act, 2005. Trial Court is also directed to conclude the trial within one month. Before parting with the order I am thankful to all the learned counsel for the parties for their valuable assistance. MH/K-9/Sindh Revision allowed.