2022 PLP 1271 (YLR)

RAJA SHAKEEL AHMAD, J.

This revision petition has been directed against the interlocutory Order dated 24.12.2020 passed by the Duty Judge/ Civil Judge Skardu 1st Class Skardu in Civil Suit No. 03/2020 while disposing application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C.

2. A short brief of the case is that the respondents/plaintiffs filed a civil suit bearing No. C. Suit No.03/2020 before the Duty Civil Judge Rondu for the declaration to the effect that the plaintiffs/respondents are owners of 20 kanal 1 marla land in specified Khasra Numbers mentioned in the head note of the plaint situated at Mauza Baghicha Rondo; the defendant No. 1 in collusion with the other defendants have prepared Award No. DK-4(1)/2020/Award/NHA/ 14 dated 15.06.2020 in his name and received the compensation amount Rs. 400,000/ (Rupees four lac), the plaintiffs are entitled for their share amounting to Rs-321,122.24/, the same amount may be given to the plaintiffs declaring them to be co sharers in the disputed property, along with the plaint an application under Order XXXIX, Rules 1 and 2, C.P.C. was also annexed. On 21.12.2020,the learned trial Court fixed the case for 24.12.2020, for attendance of the parties by prevailing the status quo. On 24.12.2020 the learned trial court heard the arguments partially on application under Order XXXIX, Rules 1 and 2 and passed the impugned order by granting ad-interim status quo in favour of respondents/plaintiffs with direction to the respondents/defendants for preparation of award for the land which was effected during construction of road (Juglote-Skardu) by inserting the names of respondents/plaintiffs and further directed to submit the compliance report on the adjourned date. After the granting status quo the learned trial Court repeatedly issued direction for compliance report.

3. The petitioner/defendant No.1 feeling aggrieved from the order sheet dated 24.12.2020 and subsequent order sheets of the learned trial Court preferred the revision petition in hand with following prayer:-- "It is therefore humbly prayed that by accepting this revision petition the impugned Order dated 24.12.2020 and order dated 14.04.2021, further all the order sheets are liable to be set aside which are based on order 24.12.2020, further the case may kindly be remitted back to trial Court for proceed with the same as per the order sheet dated 21.12.2020 and passed any order after hearing from the both parties to meet the ends of justice and equity."

4. The learned counsel for the petitioner/defendant No.1 contended that the order dated 24.12.2021 have no any sanctity in the eye of law, because no Court have any jurisdiction to pass ex-parte ante status quo order without extending a right of defense to the contesting parties. The learned trial Court has passed the impugned order in a hasty manner without hearing both the parties. The impugned order passed by the learned trial court actually amounts to a decree which is passed without proper trial and hearing the parties, and subsequent orders based on the impugned order are illegal without jurisdiction and against the law. The procedure followed by the court against the petitioner/defendant No.1 is illegal, unwarranted and has no legal value, as the petitioner totally unaware about the directions of the court and its proceedings. During the proceedings the court did not bother to inform the earlier order which was passed against the petitioner. The petitioner has not yet filed any written statement, and till yet the learned trial court not directed the petitioner/defendant No. 1 to file written statement against the suit, while the learned trial Court started the trial partially. The learned trial Court without jurisdiction and without fulfilling requirements of C.P.C., on first hearing passed a decree ex-parte against the petitioner, which is not maintainable and is liable to be set aside. The impugned order is the result of misreading and non-reading of the documents, which is ultra-vires, ineffectual, nugatory and without legal force. The learned counsel asserted that through the plaint the plaintiffs have challenged the validity of Award prepared under Land Acquisition Act, which is unwarranted by law, the vires of an award could be assailed through a reference under sections 18 and 30 of Land Acquisition Act, 1894 before Referee Court hence the present suit before the Civil Court is barred by law and liable to be rejected. The learned Civil Court has no Jurisdiction to entertain a suit challenging an award made by the collector hence the suit of the plaintiff should be returned to present the same before the competent court of jurisdiction. Finally, the learned concluded his arguments with the prayer mentioned above.

5. On the other hand the learned counsel for respondent No.1 and the AAG for respondents Nos. 2 to 5 opposed the contention of learned counsel for petitioner and contended that the petitioner deliberately avoiding to be appeared before the learned trial Court and lingering on the civil suit. The conduct of petitioner is illegal and he has been proceeded ex-parte in the civil suit. The learned trial Court has rightly proceeded the petitioner ex-parte and passed the interim order by granting ad-interim status quo. Lastly, the learned counsel prayed for dismissal of the instant revision petition.

6. We have heard the arguments at length advanced by the learned counsel for the parties through video link and perused the record of the case with able assistance of their counsel.

7. From perusal of the record and order sheets of learned trial Court filed by the learned counsel for petitioner along with this revisions petition, it transpires that the plaintiffs/respondents filed the C. Suit No. 03/2020 during winter vacations on 21.12.2020. The learned trial Court/duty judge after perusal of the reader report on same day issued notices for the attendance of the respondents/ defendants and fixed the case for 24.12.2020 for attendance of the defendants, astonishingly prevailing the status quo despite the fact that on the same date the suit was instituted. On 24.12.2021 the defendant No.1 who is actually contesting defendant was absent and remaining defendants Nos.2 to 5 were present, the order sheet is silent about the service of summon on the defendant No.1, but surprisingly the defendants Nos. 2 to 5 filed the W/S and on the same day the learned trial court heard the arguments in absence of the defendant No. 1 and granted ex parte decree under the mischief of the injunction order and state away directed the Collector Skardu to make award in favour of the plaintiff and submit compliance report on or before 17.12.2021. The impugned order is reproduced as under: - "24.12.2020: Plaintiff No.1 in capacity of attorney of rest of plaintiffs along with counsel Advocate Safdar Ali, Defendants Nos. 2 to 5 through District Attorney and rep. Mr. Manzoor Hussain, present. Defendant No.1 absent. Re-issue summons to defendant No.1. Defendants Nos.2 to 5 filed w/r under Order XXXIX Rules 1 and 2, C.P.C., which is placed on file. Copy supplied. Arguments under Order XXXIX Rules 1 and 2, C.P.C. heard. Perusal of record shows that plaintiffs have prima facie a good arguable case and if stay is not granted, plaintiffs shall suffer irreparable loss as it would affect their title in future transactions/matters as well, likewise, balance of convenience also lies in favour of plaintiffs. Moreover, Collector Skardu is directed to corroborate the Jama Bandi of year 1989 and 1968 filed by plaintiffs with that of the revenue record, and if the plaintiffs have title in the disputed property, then make award in their names according to revenue record and submit compliance report on or before 17.02.2021. Till then status quo shall prevail."

8. It is evident from the record that the learned trial Court passed the above order sheet on 24.12.2020, while the suit was filed on 21.12.2020. Perusal of subsequent order sheets 17.02.2021, 06.03.2021, 2004.2021, 06.04.2021, 14.04.2021, 21.04.2021, 07.05.2021, 21.05.2021, 03.06.2021, 17.06.2021, 29.06.2021, 01.09.2021, 24.09.2021, 01.10.2021, 13.10.2021, 23.10.2021 and 09.11.2021, it is evident that no other proceedings under C.P.C. taken by learned trial court instead of direction to respondents/defendants Nos. 2 to 5 for submission of compliance report, based on the impugned order sheet dated 24.12.2020. All the proceedings in the instant case are carried against the provisions of Civil Procedure Code, neither any directions for submission of written statement of Defendant No. 1/ petitioner is issued nor any action taken under Order VIII Rule 10, C.P.C.

9. The impugned order passed by the Trial Court is unique in nature, the learned trial court in its above impugned order on one side maintained status quo but on the same breath directed the respondents/ defendants Nos. 2 to 5 to make changes in the revenue record and make award in the name of the plaintiffs, which is ante status quo, and the order amounts to a decree which couldn't be passed without hearing the parties, after framing of issues and procuring the evidence of the parties. From perusal of the impugned judgment it transpires that the learned trial Court not only passed an illegal decree in favour of the respondents/plaintiffs but converted the same into an execution petition by issuing continuous orders for compliance of the judgment/order dated 24.12.2020, hence the impugned order/judgment dated 24.12.2020 and all subsequent proceedings as reflected in the order sheets of the case file have no legal value, being carried against the mandate of law. The impugned judgment/order, from the inception amounts to be a void order, which is passed in a hasty and mechanical manner, violating the mandatory provisions of law, bypassing the procedural requirements and without applying judicious mind. Such Judgment/ order should not remain in field being sketchy, unwarranted and being bad in the eye of law.

10. In the light of above discussion the instant revision petition bearing number Civil Revision 139/2021 is hereby allowed as prayed for by setting aside the impugned judgment/order dated 24.12.2020 and subsequent orders passed by the learned trial Court in Civil Suit No. 03/2020. The learned trial Court is directed to follow the procedure and proceed the case further after obtaining written statement from the defendant No.1/petitioner following the procedure as provided under Order VIII of Code of Civil Procedure (C.P.C.).

11. Till the final disposal of the suit the status quo of the matter shall be maintained and defendants Nos. 2 to 5 are restrained to make any change in the revenue record till the final disposal of the suit on merits between the contesting parties i.e. Plaintiffs and defendant No.

1. Annexed petition bearing number C.M. No. 766/21 is disposed of. A certified true copy of this order be sent to the trial Court along with record of the case (if any). No order as to costs. File. ZH/6/GB Revision allowed.