2010 PLP 1243 (CLC)

IQBAL HAMEED-UR-REHMAN, J.

Through the instant petition, the petitioner prays that the impugned order dated 12-1-2010 passed by the learned Executing Court and the judgment and decree dated 17-3-2010 passed by the learned Additional District Judge be declared to have been passed without lawful justification and of no legal effect and the same be set aside and objection petition of the petitioner be ordered to be decided in accordance with law on merits.

2. Brief facts as stated by the petitioner in this writ petition are that the Land Acquisition Department acquired land measuring 62 kanals 1 marla for Government Hospital and fixed the compensation of Rs. 5,00,15000 and the petitioner is owner of 1/4th share in the acquired property but respondent No.1 without associating the petitioner, filed a suit, which was decreed ex parte and the said decree was upheld by this Court in RFA No. 116 of 1994 vide order dated 9-10-2003 and FAO No. 131 of 2008 vide order dated 12-5-2009. Respondent No.1 filed execution of the judgment and decree. The petitioner having knowledge, filed objection petition before the learned Executing Court which was contested vide written reply. Respondent No.1 also filed an application for awarding special costs which was replied. The petitioner filed an application for grant of temporary injunction regarding payment of the compensation to respondents beyond their entitlement. The learned Executing Court vide order dated 29-2-2008 refused to stay execution proceedings and vide order dated 12-1-2010 dismissed the objection petition. Being aggrieved with the said order, the petitioner filed a revision before the learned District Judge Kasur and also filed an application for placing on record forged Wakalatnama placed on record by respondents Nos.1 and 4 as well as F.I.R. but the learned Additional District Judge, Kasur, vide order dated 17-3-2010 dismissed the revision. Hence this writ petition.

3. It is contended by learned counsel for the petitioner that Mst. Shakeela Bibi, Mst. Naseem Bibi, Mst.Zareen Bibi and Mst. Gulzar Bibi in the suit of the petitioner for declaration compromised with the petitioner and asserted that they have no objection in the decree of the suit of the petitioner for declaration and receipt of share of the petitioner and Mst. Sakina Bibi and Razia Bibi, defendants Nos.14 and 15 in the suit of the petitioner, also filed conceding written statement and supported the version of the petitioner, whereas the deceased Muhammad Shafi about 20 years ago, admitted the ownership of the petitioner and the legal heirs of the deceased corroborated the version of the deceased Muhammad Shafi and in view of the same, there exists factual controversy in the case but the learned Courts below committed irregularity and illegality while ignoring the established mixed question of law and fact. It is further contended that the learned Executing Court without calling written reply of the petitioner dismissed the stay application. It is further contended that sufficient material is available on record to corroborate the claim of the petitioner but the learned Courts below while passing the impugned orders, have not taken into consideration the same. It is further contended that the learned Courts below have acted in disregard of law and totally ignored the legitimate and genuine case of the petitioner supported by convincing and credible evidence, therefore, the impugned judgments amounts to deprive the petitioner of his valuable rights and to give him discriminatory treatment by condemning unheard which is violative and detrimental to vested rights guaranteed in Articles, 4, 8, 24 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. It is further contended that the claim of the petitioner finds support and corroboration from the record available on record and if his share is granted to others, the petitioner shall suffer irreparable loss and injury if the respondents without disproving the claim of the petitioner, received the entire compensation beyond the entitlement.

4. I have heard learned counsel for the petitioner and have also perused the impugned judgments and other material available on the record.

5. From the perusal of the record, it reveals that respondent No.1 Mst. Jameela Begum filed an execution petition regarding order dated 13-1-2004 passed by this Court and the said order was upheld by the honourable Supreme Court. Regarding the rate of compensation the matter was again challenged before this Court and vide order dated 12-5-2009 the appeal was allowed and the learned Executing Court directed the judgment-debtor to make payment to the petitioner and the respondents according to their shares. The petitioner filed an objection petition and along with the objection petition, he filed an application for temporary injunction and the said application was dismissed by the learned Executing Court and the said order was upheld by the learned Additional District Judge. As the petitioner has claimed his entitlement in the compensation, therefore, he should challenge the validity of final order or judgment and since the final order/judgment was passed by this Court, he should challenge the validity only of that order in terms of section 12(2), C.P.C. instead of filing an objection petition before the Executing Court. If respondents Nos.5, 7 to 10 have given statements to the effect that they had entered into compromise with the petitioner with regard to compensation, they can make mutual adjustments with regard to compensation amount but execution of the decree cannot be disturbed. In this view of the matter, the learned Executing Court rightly dismissed the objection petition of the petitioner and the learned Additional District Judge rightly concurred with the findings of the learned Executing Court.

6. In view of what has been discussed above, learned counsel for the petitioner has not been able to point out any illegality or irregularity in the impugned judgments calling for interference by this Court in constitution petition. Therefore, this writ petition is dismissed in limine. A.R.K./M-315/L Petition dismissed.