2011 PLP 1982 (MLD)

MUHAMMAD NOOR MESKANZAI, J.

The petitioners, through instant petition, have called in question the legality and propriety of order dated 21st June, 2007 passed by Qazi, Khuzdar and order dated 30th August, 2007 passed by Majlis-e-Shoora, Khuzdar, whereby appeal filed by petitioners against the order of Qazi, Khuzdar was dismissed by upholding the order passed by Qazi, Khuzdar.

2. Facts, in brief, as gathered from the record are that a suit filed by respondents regarding the rights of water channel in the name of Shandi Nadi in Lafar Zard Sub-Tehsil Nal District, Khuzdar was decreed in favour of predecessor-in-interest of respondents in the year, 1982 in following terms:--

3. The appeal filed against the said judgment and decree was dismissed in September, 1982. The Civil Revision Petition No.59 of 1982 preferred against the judgment and decree passed by the Majlis-e-Shoora was also dismissed on 11th May, 1983. An execution application was filed on 6th November, 2000 before Qazi, Khuzdar. The learned executing Court ordered for forfeiture of the surety submitted by the petitioners amounting to Rs.100,

000. The order so passed by the executing Court was set aside by the appellate Court vide order dated 18th April, 2001. The said order was assailed through Civil Revision Petition No.121 of 2001 before this Court, which was disposed of on 4th May, 2005 upon the undertaking of learned counsel for the petitioners. The operative portion of the order is reproduced as under:-- "Learned counsel for respondents has filed undertaking that respondents will abide by the judgment and decree dated 19th June 1982 passed by Qazi Khuzdar and; will not interfere in the smooth running of water channel (Shandi Nadi) and utilization thereof: In view of above undertaking, the respondents are restrained from interfering in the water channel, in any manner, whatsoever. Petition is accordingly disposed of in the above terms."

4. The respondent No.1 on 1st October, 2001 filed another execution application against the petitioners before the Qazi, Khuzdar. Through that application, the respondents requested for obtaining surety from the petitioners for non-interference in the water channel Shandi Nadi. The application was allowed vide order dated 19th December, 2006 by calling upon the respondents to furnish the surety in the sum of Rs.50,000 for non-interference in the water channel Shandi Nadi. The order passed was assailed through Civil Appeal No.87 of 2007 before the Majlis-e-Shoora, Khuzdar, which was allowed vide order dated 14th February, 2007 on the ground that the application was found vague, besides the judgment-debtor No.2 i.e. Haji Muhammad Hassan had expired and the legal heirs of deceased/judgment-debtor were not made party and application was made against a dead person. The learned Majlis-e-Shoora, Khuzdar while accepting the Appeal No.87 of 2007 set aside the order dated 11th December, 2006, however respondents were set at liberty to file fresh execution application. This judgment of Majlis-e-Shoora was not challenged by either of the parties. The respondents filed execution Application No. 8 of 2007, whereupon the respondents were directed to file rejoinder to the same. The petitioners while filing replication took an objection upon the maintainability of application on the ground that the judgment-debtors have already furnished non-interference surety, therefore; the application is misconceived. The trial Court after hearing the parties passed the following orders:--

5. Petitioners feeling dissatisfied with the order dated 21st June, 2007 filed Civil Appeal No. 46 of 2007, which was dismissed vide order dated 30th August, 2007. Feeling aggrieved with the order so passed, instant revision petition has been filed.

6. On 30th April, 2008 while admitting the petition, following order was passed:-- "Learned counsel for the petitioners submits that learned trial Court in execution of the decree in violation of the provisions of Order XXI, Rule 32(5), C.P.C. has directed the petitioners to submit surety, whereas; no such directions could be made in execution of the decree restraining the defendants from interference in the water channel. Contentions so raised require consideration. Admit. Notice."

7. The learned counsel for the petitioners submitted that the orders impugned herein are contrary to law, therefore, are liable to be set aside. It was contended that the executing Court did not conduct inquiry but on mere allegations the impugned orders have been passed. It was submitted that the lands of the petitioners are irrigated from the water channel in question and are required to be irrigated prior to the lands of the respondents. It was urged with vehemence that the petitioners have already submitted surety in the sum of Rs.100,000, therefore no further surety is required to be furnished, as the petitioners have not violated the decree so passed against them. On the other hand, the learned counsel for the respondents opposed the arguments so advanced. It was contended with vehemence that all the respondents are being deprived of the fruit of decree passed in their favour in the year, 1982. Moreover, the undertaking given by the petitioners in this Court is also being violated, which renders the respondents to be proceeded with for the contempt of this Court. The learned counsel for the respondents maintained that the decree passed in favour of respondents is prohibitory in nature and each and every breach provides a fresh cause for filing application. The learned counsel urged that the petitioners although claimed before the appellate Court that they have furnished surety in the sum of Rs.100,000 for non-interference, but they failed to produce the copy of surety bond, therefore; the trial Court as well as the appellate Court have rightly observed that the petitioners should furnish surety in the sum of Rs.50,000 for non-interference in water channel.

8. I have heard learned counsel for the parties and have gone through the available record. The perusal of record reflects that the petitioners have failed to procure the copy of the bond, whereby the surety for non-interference in the sum of Rs.100,000 was furnished. Secondly it is inferred that the surety in the sum of Rs.100.000 has been furnished, the same was not forfeited perhaps for two reasons. No.1 the non-availability of bond so furnished No.2 while giving undertaking before this Court, the bond has lost its importance and efficacy. Record reveals that the decree passed in favour of predecessor-in-interest of respondents is prohibitory in nature. The petitioners were restrained from interference in the water channel Shandi Nadi. It appears that interference with water channel subsisted and the respondents filed the successive application, whereupon the executing Court categorically observed that the petitioners are interfering with the water channel. The contents of instant petition lead to irresistible conclusion that the petitioners are bent upon to interfere with the water channel in question. For ready reference grounds 'B' and C of instant petition are relevant to be reproduced as under:-- (B) That the impugned orders have been passed without any inquiry or site inspection merely upon allegations of respondents, which has warranted grave miscarriage of justice, because the lands of petitioners are before the lands of respondents and the natural flow of water irrigates the lands of petitioners, and through impugned order petitioners have been deprived from, irrigation of their lands. (C) That he petitioners have already submitted surety in the sum of Rs.100,000, thus further surety was uncalled for." 10(sic). It is not understandable that vide Paras (supra), the petitioners seek irrigation of their lands through the said water channel, whereas in ground 'C' of grounds of the petition, the petitioners have claimed to have furnished the surety in sum of Rs.100,

000. Such contradictory and self-destructive stance on the part of petitioners is quite strange and painful. It seems that neither the petitioners are ready to honour the decree passed in the year, 1982 in favour of respondents nor they have any grace for the undertaking given by them before this Court. On one pretext or the other, the respondents are being deprived of the fruits of the decree and undertaking. As rightly observed by the Privy Council that the difficulties of a litigant in sub-continent arise when a decree is passed in his favour. The same proposition applies with full force to the facts of this case. Respondents cannot be allowed to violate the terms of decree nor they can be permitted to disobey and dishonour the undertaking given by them before this Court. Each and every interference with the water channel Shandi Nadi amounts to breach of the bond and provides a genuine ground for forfeiture of the same. As, it is a recurring cause, the decree-holders have the right to ask for fresh surety, if the already one stands liable to be forfeited provided the decree holders prove the violation thereof. In such view of the matter, the Courts below have committed no irregularity while passing the impugned orders. There is no mis-exercise of jurisdiction by the lower forums calling for interference by this Court. For the foregoing reasons, the instant petition is dismissed with costs throughout. S.A.K./90/Q Revision dismissed.