2008 P Cr (PLP)

SYED SHABBAR RAZA RIZVI.

The grievance of the learned counsel for the petitioner is that a complaint was filed by the respondent No.2 under sections 3 and 4 of Illegal Dispossession Act, 2005. The said complaint was dismissed on 9-5-2007 in view of full bench judgment dated 19-1-2007 passed in Zahoor Ahmad and 5 others v. The State and 3 others reported in PLD 2007 Lah. 231.

2. Briefly, the complainant (respondent No.2) alleged in his complaint that he had purchased a house on 22-9-2005 from Abida Bibi and Hafiz Khalil Ahmad through a sale-deed. The possession was handed over to him. The complainant/respondent No.2 after taking possession of the house put the house on tenancy. However, on 16-11-2005 Abida Bibi and Tayyaba Bibi (present petitioners) took over the possession of the house with the help of some hooligans. In the above background the complainant was filed under the Illegal Dispossession Act, 2005.

3. During the pendency of the complaint, on application of the complainant/respondent No.2 the possession was ordered to be handed over to him as an interim relief, under section 7 of the Act, vide order dated 7-9-2006. In the meanwhile, the above mentioned judgment of a full bench of this Court was delivered. In the light of the judgment the complaint was dismissed, vide order of the Additional Sessions Judge, dated 9-5-2007.

4. After the dismissal, the present petitioners requested for restoration of possession of the disputed house which was denied by the learned Additional Sessions Judge, vide his order dated 9-5-2007. The relevant portion reads as under:

"However learned counsel for the respondents also vehemently prays for restoration of possession which was granted by this Court, but this Court is of the considered view that such order for restoration would amount to review of order, which this Court has limited jurisdiction, however, if the respondents want restoration of possession, they are at liberty to knock the door of civil Court or any competent forum." After refusal of restoration of possession, the petitioners filed another application for the same relief which was also refused by the learned Additional Sessions Judge, vide order dated 1-6-2007, on the same ground mentioned in order dated 9-5-2007.

5. The learned counsel for the petitioner filed this writ petition. Impugned orders were passed by the learned Additional Sessions Judge on judicial side, therefore, the learned counsel for the petitioner should have filed a revision petition as the same is provided in the Statute. A writ petition can only be filed if no remedy is provided under the law. However, to avoid longevity, this writ petition is converted into a revision under section 435, Cr.P.C. in the interest of justice. Undoubtedly, the learned counsel for the petitioners has inaptly and incompetently filed and argued this case but to save hardship of the petitioners, his follies are overlooked.

6. Interim relief was granted by the learned Additional Sessions Judge under section 7 of the Illegal Dispossession Act, 2005; during the pendency of the complaint before him. Since the learned Additional Sessions Judge found the complaint non-maintainable, in view of the judgment rendered by learned Full Bench of this Court; automatically position which prevailed prior to filing the complaint stood restored. The learned Additional Sessions Judge, failed to apply his mind in this regard. He should have restored the possession to the present petitioners which he had handed over to the complainant (respondent No.2) while exercising jurisdiction which did not vest in him as the complaint was not maintainable. Therefore, the moment he held that complaint was not maintainable and dismissed the same, the interim order also ceased to exist. At this juncture, it would be appropriate to advert to the relevant portion of the decision of the Full Bench of this Court which is as below:

"All the Courts of Sessions in the Province of Punjab are directed to examine all the complaints under the Illegal Dispossession Act, 2005 pending before there and to dismiss all those complaints forthwith which are found not maintainable in terms of interpretation of the said law rendered by us through the present judgment."

7. The learned Additional Sessions Judge, did not find the complaint maintainable and decided to dismiss the same 'then how could he maintain his interim order, an off-shoot of the main case i.e. the complaint?

8. In view of the above reasons, this revision is allowed. The orders of the, learned Additional Sessions Judge, dated 9-5-2007 and 1-6-2007 are set aside. The petitioner is directed to approach the S.H.O. concerned who will restore possession of the disputed property to the petitioners. N.H.Q./K-44/L Revision petition allowed.