2016 PLP 615 (CLC)

MUHAMMAD ALAM, J.

This is a civil revision petition against judgment/order dated 17-12-1997, passed by Mr. Mehmood Ghaznavi, District Judge Gilgit, in review petition No.03/1997 of the said court, whereby, the petition filed by petitioners under Rule I, Order XLVII read with section 114, C.P.C., was dismissed.

2. On 12-03-2003, petitioners filed a petition for conversion of the above mentioned revision petition into a writ petition. The case in hand is oldest in the diary of this court and the litigation between the parties started on 23-04-1983 on filing of the civil suit No.80/1983. The case in hand is very complex one with its very peculiar and special circumstances. We have heard lengthy arguments of the learned Additional Advocate General, for petitioners and learned counsel for respondents, pro and contra the revision petition as well as the petition for conversion of the same into writ petition. We repeatedly requested the learned counsel for parties for assisting the court through up to date case law particularly with reference to the supervisory powers of this court, but learned counsel for parties did not submit any case law.

3. After institution of the suit, parties to the suit contested the same but without producing any evidence. Respondents had arrayed only Collector Gilgit as defendant to the suit. Suit land is 6185 kanals 5 marlas. For ready reference, we reproduce the heading of the suit hereunder:- Learned trial court framed the following issues in the light of pleadings of parties:-

1. Whether the court has no jurisdiction to try the suit? OPD

2. Whether plaint has not been drafted in accordance with law? So the suit is fit to be dismissed? OPD

3. Whether plaintiffs have no cause of action against defendant for filing the suit? OPD

4. Whether plaintiffs, as Khewardaran of the village adjacent to the suit land, have a prior right of Nautore of suit land and are entitled, under law and tradition, in the light of Wazib-ul-Arz for partition of the same in accordance with their own Hissa Rasdi? OPD

5. Relief.

4. Parties did not produce oral evidence in proof and rebuttal of issues and instead relied on statements of their representatives. Learned trial court passed judgment/decree dated 22-12-1985. Respondent, who was the then Collector of the District Gilgit, did not file any appeal or review or revision in the trial court or any appellate forum. Respondents and the then Collector went through execution proceedings of the execution of above decree and completed execution proceedings. On 14-12-1988, petitioners filed a petition under section 12(2) read with section 151 of C.P.C. for setting aside/reversing the judgment/decree dated 22-12-1985 passed in Civil Suit No.80 and the learned trial court started trial of the same after registering the same as Civil Misc. No.67/1988. Through his order dated 31-10-1992, the then learned Civil Judge dismissed the said petition holding that the same is not maintainable and unfounded. Petitioners filed a revision petition (Civil Revision No.07/1993) in the District Court against said order of the learned Civil Judge and the learned District Judge through his order dated 17-10-1996, dismissed the same. Feeling aggrieved from the same, petitioners filed revision petition (Civil Review Petition No.03/1997) in District Court, who through his order dated 19-12-1997, dismissed the same. On this, petitioners moved a revision petition (Civil Revision No.37/1998) in this court, against order dated 19-12-1997 of the District Judge passed in Civil Review Petition No.03/1997. It is very important to note that petitioners moved the Revision Petition No.07/1993 in the then Court of Judicial Commissioner Gilgit-Baltistan and was registered as N.JC.C.R-21/92, who through his order dated 30-08-1993, referred the same to District Court through diary/dispatch No.24 dated 07-02-93 of this court, and the learned District Court dismissed the same through his order dated 19-12-97. For ready reference, we reproduce the order of the then Judicial Commissioner, hereunder:- 30-08-1993 Mr. Shahbaz Khan, District Attorney/ Government Pleader, for the petitioners and representatives of respondents with Mr. Mohammad Essa, Advocate present. Since the revision jurisdictional is concurrent, therefore, the present revision petition is entrusted to the District Judge, Gilgit for disposal. Parties are directed to appear there on 29-09-1993. Announced: Sd/Judicial 30-08-1993. Commissioner And feeling aggrieved from the same, a revision petition No.37/1998 filed in this court. Through a petition dated 12-03-2003, the petitioners prayed for conversion of the said revision petition into a writ petition.

5. Keeping in view the complex and unique circumstances of the case, we have heard learned counsel for parties and have gone through the relevant law on our own to come to a correct conclusion. In the case in hand, learned Additional Advocate General or learned counsel for respondents did not render proper and required assistance although we repeatedly asked the learned Additional Advocate General for engaging a senior counsel for our assistance in the peculiar circumstances of the case in hand. Therefore, we had to go through the relevant law and material on our own. After thorough and detailed deliberations, we formulated the following questions for consideration and discussed in detail the possible answers to the following questions:-- a) Whether the initial decree dated 22-12-1985 passed in Civil Suit No.80/1983, by the then Civil Judge No.II Gilgit, is correct in all respects? b) What are the effects of non-joinder of petitioners to the Civil Suit? And what are the legal effects of impleading the then Collector of District Gilgit to the suit? c) Whether referring of revision petition No.07/1993 to the then District Court was legally correct decision by the then Court of Judicial Commissioner as the same was then apex court of Gilgit-Baltistan? If the answer is no, then how the said mistake of the said court could be corrected? d) Whether this court has the powers to convert the revision petition into a writ petition? Or whether this court must, in the attending peculiar circumstance of the case in hand, convert the revision petition into writ petition? e) Whether the actions or judicial proceedings of different forums, who came across the case in hand, can be corrected by this court by exercising the supervisory powers? And whether exercising the supervisory powers by this Court are indispensable in the attending circumstances of the case in hand?

6. In answer to above questions, we had to go through the material available on file besides studying the peculiar circumstances of the case. We are taking up the question of array of parties in the plaint of suit first. While drafting the plaint, it is evident that the respondents/ plaintiffs impleaded only the Collector District Gilgit as defendant. The then learned trial court continued with the proceedings of the trial of the suit without impleading petitioners as party to the case. In our opinion, the learned trial court was duty bound to implead the petitioners, party to the case as the averments of the plaint demanded so. In the averments of the plaint, respondents/plaintiffs have very plainly averred that they are owners of the suit land as the suit land is Khalisa land of Andaroon Line. The word Andaroon Line appeared in the Nautore Rules with its full definition. The Nautore Rules of Gilgit-Baltistan are a special law and provides the procedure of alienating the lands described as Andaroon Line lands of any village in Gilgit-Baltistan. The Nautore Rules further describe the powers and duties of petitioners regarding the lands described as Andaroon Line lands. So, we are of the confirmed opinion that the petitioners were necessary party to the case. Now the question for determination is that, what are the effects of omission or negligent mistake on the part of the then learned trial court, in not impleading petitioners as the contesting defendants. We are of the opinion that the said omission on the part of said trial court has caused substantial mis-carriage of justice because it is not disputed that the Collector is never owner of the suit land nor is claimant to the suit land in his official capacity as well as in his private capacity. In this connection, we are of the view that the petitioners had a right to be heard although the same right was a vested right or a simple right. Vested right has been defined by our superior courts as rights which are not dependant on any contingency. If a person is wrongfully deprived of something or is denied something which he is entitled to or his title to something is wrongfully affected, he is said to have suffered a legal grievance, and if a forum is provided for redress, he can successfully impugn the wrongful action. (SCMR 1994 page 759). In the case in hand, petitioners had every right to be impleaded as defendants and to be heard before the learned trial court. We have further taken into consideration that whether we should also overlook this omission or negligent mistake on the part of the then trial court. In our opinion, the Collector Gilgit has no role to play in connection with control and supervision of the Andaroon Line lands, described in Nautore Rules. As to who the collector is, we have found definition of the said word in Section 3(c) of Land Acquisition Act, 1894, which goes as under:--

3. Definitions.- In this Act, unless there is something repugnant in the subject or context.- (a) .. (b) .. (c) the expression "Collector" means the Collector of a District, and includes a Deputy Commissioner and any officer specially appointed by the Provincial Government to perform the functions of a Collector under this Act.

7. After obtaining the decree dated 22-12-1985, the respondents moved the trial court of Civil Judge Gilgit for execution of the decree through execution petition No.04/87 and the same was executed through different proceedings of execution, entailing to partition of the suit land among the respondents. The then learned trial court again omitted to note that Order XXI, C.P.C. empowers the said court for avoiding execution of any illegal decree or any kind of wrong decree. The learned trial court even is empowered under Order XXI, C.P.C. for impleading the petitioners to the execution proceedings. The then learned executing court omitted to exercise all the said powers conferred by Order XXI, C.P.C. on the said court.

8. An admitted state of affair is that the superior courts of Gilgit Baltistan have time and again circulated their judgments to the District Judiciary regarding trial of cases, wherein, questions of Khalisa lands are described in plaints of suits. In such cases, the superior judiciary of GB is of consistent view that the Civil Judges should not hear such cases unless and until the opinion of the apex forum of revenue courts had come. In the case in hand, the ex-facie perusal of averments of plaint shows that the suit land is Khalisa Sarkar land and respondents claimed their title to the same on the ground that the same is described as Andaroon Line land of their village Sakwar. So the learned trial court has instead of returning the plaint for presenting the same before the proper forum, continued with the trial proceedings.

9. Now we are taking the legal effects of referring of revision petition by the then Judicial Commissioner to the District Judge Gilgit (order reproduced supra). Learned counsel for respondents did not show any case law as to validity or otherwise of the said order. Normally, Judicial Commissioner, the then apex court of Gilgit-Baltistan had obviously powers of transfer of cases pending trial in the District Judiciary from one judge to another, but in the case in hand, the then Judicial Commissioner referred a revision petition filed in his court to the then District Judge Gilgit. In our opinion, word referring of a case by the High Court to a District Court is foreign to the normal practice in administration of civil justice. Admittedly, both the courts of Judicial Commissioner and District Judge had concurrent powers of hearing of a revision petition, so the question needs deliberation and legal assistance from the learned counsel for parties to show that the said reference was valid. The order of referring is patently devoid of any ground for reference. We have gone through the provisions of section 115, C.P.C., wherein, it is not provided that any high court had the powers of referring of revision petitions, filed in their own court to the District Court. Therefore, we are of the view that the said order of referring was at least improper and bad in the eye of law.

10. Parties to case have contested C.Rev. Petition No.07/93 in which the then District Judge passed order dated 17-10-96. Petitioners filed a Review Petition No.03/97 against order dated 17-10-96 passed in C.Rev. No.07/93 and the said petition also doomed dismissal through order dated 17-12-1997, of the then District Judge Gilgit. We have very thoughtfully considered the correctness, and propriety or otherwise of the said two orders of the District Judge Gilgit. We are of the confirmed view that an order of the court passed in exercise of its revisional jurisdiction cannot be interfered except in very exceptional circumstances. So, the question for consideration is that whether the above two orders of the District Judge Gilgit, are so wrong that we should interfere and upset the said two orders, holding that the same are falling in the said very exceptional cases? In this connection, we are reverting to the circumstances in which the original decree was passed by the trial court. As has been discussed above that the learned trial court has omitted or done a negligent mistake by passing the decree without impleading the necessary party to the case. In our opinion, the petitioners are the only necessary party to the case and failure of the trial court to implead them to the case practically amounted to non-representation of the petitioners which is obviously mis-representation of the petitioners as the case has been contested by the Collector Gilgit, who already has been observed, ad no role to play in connection with lands described as Andaroon Line land. In this connection, we reproduce section 12(2), CPC for ready reference:

12. Bar to further suit.- (1) .. (2) "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit." So it is clear that decree dated 22-12-1985 has been obtained by the respondents as a result of mis-representation of the correct and only party to the case, who are obviously petitioners. Moreover, the learned trial court has continued with the trial of the suit in utter violation of the provisions of section 79 read with Order XXVII, C.P.C. In our opinion, the government of Gilgit-Baltistan is necessary and the only party to the case and impleading the same in accordance with the provisions of section 79 read with Order XXVII, C.P.C. is indispensible according to the circumstances of the case in hand. Omission or neglecting the provisions of section 79 read with Order XXVII, C.P.C. by the trial court amounted to wholly void decree dated 22-12-1985 and all the proceedings including the execution proceedings completed after the said decree are void as well as coram non-judice.

12. This case has another very important aspect also, which is admitted but cannot be overlooked. The said aspect is the ground realities regarding the appropriation or control of suit land. After decree dated 22-12-1985, learned trial court completed all the proceedings of execution of the said decree. The respondents conducted partition of the suit land among themselves in accordance with the traditions of the village. The department of Settlement or Revenue Department of the petitioners assisted the respondents throughout the execution proceedings as well as the partition proceedings of the suit land among the respondents. Petitioners did not show any disciplinary proceedings against any of the Settlement department or Revenue department. Respondents sold the different parts of suit land to different vendees, who are not party to the case. All such vendees are bonafide purchasers of different parts of suit land and have so far completed different constructions besides developing the different parts of suit land in different ways. Thus the said bonafide purchasers have invested millions of rupees in construction as well as in developing different parts of suit land. We cannot ignore these admitted state of affairs, which we term as the ground realities. Therefore, we pass the following order:-

1. In the sequel of above discussion, we are of the opinion that the initial decree dated 22-12-1985 was result of mis-description of parties and violative of provisions of Section 79 and Order XXVII, C.P.C., therefore, we in exercise of our supervisory powers, convert this revision petition into writ petition. We accept this petition, set aside decree dated 22-12-1985 and reverse the impugned orders of District Judge as well as the learned Civil Judge. During the prolonged litigation, either of parties moved different petitions at different times and the learned Civil Courts up to the Chief Court passed different orders. All such orders be deemed as reversed after merging the same proceedings in this petition. We remand the case (Civil Suit No.80/83 filed on 23-04-83), back to the trial court for de novo trial of the said suit after impleading petitioners as defendants to the suit.

2. We pass the orders of maintaining the status-quo of suit property in the light of existing ground realities, described supra, till final disposal of the suit or if the case is returned by the trial court for presentation before the revenue forum, till final disposal of the case by such forum. The order of maintaining status-quo is further explained in the following words:- "That all the mutations and other revenue documents prepared in the light of decree dated 22-12-1985 be deemed correct unless and until reversed or varied by the trial court or the revenue forum as the case may be. Parties to case have obviously the right of moving the Civil Courts in case the decision of revenue forum comes against either of them. All the sale agreements of respondents with all the bonafide purchasers and the mutations thereof, if any, be deemed correct till final decision of the case by the competent courts or court. This order will not affect private cases of different parties, regarding any part of suit land, which are sub-judice in different courts of Gilgit-Baltistan."

3. We direct the trial court for speedy trial of the case. Learned trial court is free to implead the vendees of the different parts of suit land as party to the case if impleading them is necessary or requirement of law.

4. Order accordingly. Parties to bear their own costs. This file be consigned to record. ZC/117/GB Order accordingly.