2009 PLP 74 (SCMR)

MIAN HAMID FAROOQ, J.

Inam-ul-Haq, the petitioner, through the present petition, seeks leave to appeal against orders, dated 27-6-2008 and 8-7-2008, whereby the learned Single Judge of Lahore High Court at Lahore directed the Lahore Development Authority (L.D.A.) to comply with the order, dated 30-11-2007 passed in Writ Petition No.18171 of 1998 within a period of one week, dismissed petitioner's application under Order I, rule 10, C.P.C. and Director Estate Management L.D.A. to implement the order, dated 30-11-2007. 2.

2. Briefly stated, the facts relevant for the decision of the present petition, gathered from the available record, are that Plot No.4 Ali Block, New Muslim Town, Lahore (hereinafter referred to as disputed plot) was exempted in favour of Fazal Haq in lieu of his land acquired by the then Lahore Improvement Trust (predecessor-in-interest of L.D.A.) for its utilization for New Garden Town Housing Scheme; Fazal Haq died on 7.1-1972 and was survived by the petitioner and respondents Nos.5 to 10(a) to (c); defunct Lahore Improvement Trust without cancelling the disputed plot put it in auction and respondent No.1 was statedly declared highest bidder of Rs.1,42,43,091 and he though deposited 1/10th of the bid amount, yet failed to deposit remaining 9/10th of the auction money. At this juncture, respondent No.1 filed the constitutional petition (Writ Petition No.18171 of 1998), against L.D.A. and its functionaries, inter alia, pleading that he purchased the plot in auction; he was declared highest bidder; he deposited 1/10th of the bid amount of Rs.14,24,000; the remaining amount of Rs.1,28,19.094 was payable in twelve weeks and as the plot was disputed, therefore, he did not deposit the residue amount. Subsequently, his application (C.M. No.1 of 2004) for amendment of the writ petition was allowed and he was permitted to seek relief of possession of disputed plot. The legal representatives of Fazal Haq, through their attorney namely Syed Riaz Ali Shah, filed the application (C.M. No.1527 of 2004), under Order I, rule 10, C.P.C., for their impleadment in the writ petition. The learned single Judge of Lahore High Court dismissed their application and also allowed the afore noted constitutional petition directing the L.D.A. to deliver the possession of disputed plot to respondent No.1, subject to deposit of balance amount of price within 30 days, vide composite judgment, dated 30-11-2007. The petitioner and L.D.A. challenged the said judgment through filing separate appeals (I.C.M. Nos.319 and 320 of 2007) and the learned Division Bench of the Lahore High Court concluded that the rights of the petitioner cannot be determined in constitutional jurisdiction of the High Court, it needs probe and inquiry to determine certain questions of law and facts and in the said backdrop both the appeals were disposed of with the consent of the parties, with permission to the petitioner to assert his rights by filing suit with the observation that the judgment rendered in Writ Petition No.18171 of 1998 may not be considered a hurdle in the way of petitioner as res judicata, vide judgment dated 21-1-2008. Against the said judgment, two petitions, one by L.D.A. (C.P. No.194 of 2008) and the other by petitioner (C.P. No.172/L of 2008) were filed, which were dismissed by this Court on 4-7-2008. It appears that the petitioner, pursuant to the terms of judgment, dated 21-1-2008 passed in appeal, filed suit against respondent No.1 and L.D.A., which according to both the learned counsel is still pending. Respondent No.1, on 22-2-2008, filed an application being Criminal Original No.103-W of 2008 in Writ Petition No.18171 of 1998, before the Lahore High Court at Lahore, for initiating contempt proceedings against the functionaries of L.D.A. for not complying with the order, dated 30-11-2007 passed in the writ petition filed by him. The learned single Judge in Chambers adjourned the case to 4-7-2008 with the observation that order, dated 30-11-2007 still held the field; the respondent-L.D.A. had no option but to comply with the terms of the said order; and granted them last opportunity to comply with the order within a week, vide order, dated 27-6-2008. The petitioner filed an application being C.M. No.153 of 2008 for his impleadment in the contempt petition, on the ground that he being successor-in-interest of the exemptee is entitled to be impleaded in the petition, but the learned single Judge in Chambers, dismissed the same on the ground that petitioner's previous application on the same subject-matter was dismissed and directed the Director, Estate Management to implement the order, dated 30-11-2007 within three days, during which period respondent No.1 was directed to deposit the remaining amount vide composite order, dated 8-7-2008, hence the present petition.

3. Learned counsel for the petitioner contended that the petitioner is, admittedly, one of the successors-in-interest of Fazal Haq, in whose name the disputed plot was exempted, which was illegally auctioned and the petitioner was not allowed opportunity of hearing at any stage of the proceedings for presenting his view point, thus, was condemned unheard at all stages. His further contention is that order, dated 30-11-2007 is not in field, it has merged into judgment, dated 21-1-2008 passed in I.C.A. No.320 of 2007 and thus, earlier order could not be implemented. He has reinforced his arguments by submitting that judgment in I.C.A. was passed with the consent of both the parties and pursuant thereto the petitioner filed the suit, which is still pending. Conversely the learned counsel for the respondent No.1 has stated that the order dated 30-11-2007 holds the field, L.D.A. authorities are bound to implement the same, and petitioner's I.C.A. and civil petition, before this Court, were dismissed. He has further submitted that respondent No.1 is auction purchaser, he was declared the highest bidder and he had deposited the total price of the plot in question, therefore, both the orders do not require interference.

4. We have heard the learned counsel for the parties and examined the available record. We after having given considerable thoughts to the instant case feel that the following orders are relevant for deciding the controversy in hand:

(1) Judgment, dated 30-11-2007 passed in Writ Petition No.18171 of 1998, whereby the learned single Judge in Chambers dismissed the application (C.M. No.1527 of 2004 in Writ Petition No.18171 of 1998) filed by the legal heirs of Fazal Haq for their impleading in the petition and simultaneously allowed the constitutional petition filed by respondent No.1 directing L.D.A. authorities to deliver the possession of the disputed plot to the petitioner, subject to deposit of the balance amount of price with 30 days. (2) Judgment, dated 21-1-2008, through which the learned Division Bench of Lahore High Court at Lahore disposed of two Intra-Court Appeals (I.C.A. No.319 of 2007 filed by L.D.A. and I.C.A. No.320 of 2007 filed by legal heirs of the Fazal Haq) with the consent of the parties and the petitioner was allowed to assert his rights in property by filing civil suit. (3) Order, dated 27-6-2008, 'whereby the learned single Judge of Lahore High Court, on filing a contempt petition by respondent No.1 (Crl.O.103-W of 2008), held that L.D.A. has no other option but to comply with the order, dated 30-11-2007 and granted last opportunity to the said authority to comply with the order within a period of one week. (4) This Court on 4-7-2008, dismissed two civil petitions (C.P. No.194-L of 2008) filed by L.D.A. etc. and C.P. No.172-L of 2008 filed by the petitioner). (5) Order, dated 8-7-2008, whereby the learned single Judge dismissed petitioner's application (C.M. No.1531 and 1532 of 2008 in Crl.O.No.132-W of 2008) for impleading the petitioner and others as party and simultaneously directed Director Estate Management L.D.A. to implement the order, dated 30-11-2007 within three days.

5. As noted above, the learned single Judge, vide judgment, dated 30-11-2007, directed the L.D.A. authorities to deliver possession of the disputed plot to respondent No.1, subject to deposit of balance amount, however, the petitioner as well as the L.D.A. authorities challenged the said judgment through filing two separate appeals. The learned Division Bench of the High Court after embarking upon the entire controversy, taking into consideration that petitioner's two applications for his impleadment in the writ petition and contempt petition. were dismissed, noticing the plea of the legal heirs of Fazal Haq qua exemption of plot and observations of the learned single Judge viz. "there is no manner of doubt in my mind that in the presence of any factual dispute the petitioner is entitled to the relief prayed for by him against L.D.A." finally held in para.6 of the judgment that the rights of the petitioner cannot be determined in the constitutional jurisdiction of the High Court, proceeded to formulate certain questions of law and facts and allowed the petitioner to assert his rights in the property by filing a civil suit: It appears appropriate to reproduce certain paras. of the judgment, dated 21-1-2008, which read as follows:

"(6) After hearing both the sides, we are of the opinion that on the basis of the facts stated by the learned counsel for appellant, the rights of appellant cannot be determined in constitutional jurisdiction of this Court. It need probe and inquiry to determine the following question of law and facts:-- (i) Whether the plot in dispute was exempted way back in the year 1969 in favour of Fazal Haq the predecessor of the appellant in I.C.A. No.320 of 2007? (ii) Whether the legal heirs of Fazal Haq have any interest/right in the property which can be enforced by a Court of law, particularly, when Fazal Haq died on 6-1-1972 and the application i.e. C.M. No.1527 of 2004 by L.Rs. of Fazal Haq seeking themselves to be impleaded as party in the constitutional petition was filed on 31-5-2004? (iii) What is the effect of attestation of the mutation of inheritance after 32 years of the death of Fazal Haq; when land of Fazal Haq situated in Ichhra was acquired? (iv) Whether there was any order by the competent authority exempting the plot in question in favour of Fazal Haq. If so, what is its effect? (v) Whether any formal agreement was executed between Lahore Improvement Trust and Fazal Haq. If so, what is its effect? (vi) Whether the, plot could have been sold in favour of Muhammad Saleem Bhatti, respondent, by the L.D.A. in. open auction? (7) When confronted with the above stated questions, the learned counsel arguing the matter in I.C.A. No.320 of 2007 and appearing on behalf of legal heirs of Fazal Haq, concedes that all the above stated facts are to be proved through a proper inquiry by allowing the appellant to produce evidence in Civil Court, therefore, he does not press this appeal and states that he may be allowed to assert his right before the Civil Court provided the judgment dated 30-11-2007 passed by the learned single Judge in Chamber in Writ Petition No.18171 of 1998 might not be a hurdle in his way and not to be considered as res judicata in the civil suit filed by the appellant in Civil Court. (8) Mian Nisar Ahmed, learned counsel for respondent No.1 i.e. Muhammad Saleem Bhatti has no objection in allowing the appellant/legal heirs of Fazal Haq to assert their rights in the plot in question in the civil suit. He states that he has no objection if the judgment passed in Writ Petition No.18171 of 1998 passed by the learned single Judge in Chamber may not be considered as res judicata in civil suit and respondent/L.D.A. may also be allowed to raise all the factual and legal points before the Civil Court. (9) With the consent of the parties, the I.C.A. is disposed of as having not been pressed. The appellant is allowed to assert his rights in the property by filing a civil suit. The respondent auction purchaser and the L.D.A. shall be at liberty to raise all the factual and legal objections before the trial Court by filing written statements. The civil suit, if filed by the legal representatives of Fazal Haq, may be decided by the Civil Court expeditiously and preferably within a period of two years, after framing necessary issues and allowed the parties to produce their evidence in accordance with law. (10) It is to be noted that the judgment rendered by the learned single Judge in Chamber in Writ Petition No.18171 may not be considered as a hurdle in the way of the appellant as res judicata. The civil suit shall be decided on its own merits."

6. It flows from the above, that the learned Division Bench, after finding that there were factual controversies, which could not be decided in constitutional jurisdiction of the High Court, and certain questions of law and facts were involved requiring resolution through proper inquiry formulated certain questions and confronted the same to the learned counsel, who did not press the petition with permission to file a civil suit for the determination of these questions. It is apparent from a bare perusal of the afore-noted reproduced paras. That parties to the litigation consented that the rights of the respective parties can only be determined by Civil Court after due inquiry, inasmuch as, the learned counsel for respondent No.1 categorically stated that he (respondent No.1) would have no objection in allowing the legal Heirs of Fazal Haq to assert their rights in the plot in question in the civil suit and that the judgment passed in Writ Petition No.18171 of 1998 would not be considered as res judicata in civil suit. The tenor of the judgment passed by the learned Division Bench and the consent given by the respective parties are sufficient to show that both the parties did not intend to implement the judgment, dated 30-11-2007 and that could be the reason why the learned counsel for respondent No.1 consented that the rights of the petitioner be decided through civil suit. We are clear in our mind that the learned Division Bench although did not specifically set aside the judgment dated 30-11-2007, yet for all intents and purposes rigor and impact of the said judgment evaporated and for all legal and practical purposes it stood merged into judgment dated 21-1-2008 passed by the Division Bench. It may be noted here that both the learned counsel have stated that the petitioner filed the suit, which is still pending and all the parties including respondent No.1 are participating in the proceedings. Thus, the judgment rendered by the Division Bench stood implemented and, therefore, there was no occasion for respondent No.1 to prosecute his contempt application.

6. Learned counsel for respondent No.1 has laid much emphasis on the order, dated 4-7-2008 passed by this Court, whereby, two petitions were dismissed. We find that the rights of the parties were not finally determined through the said order and the learned Bench of this Court after perusal of the judgment held that the I.C.As. were disposed of with the consent of the parties as having not been pressed. The learned Bench of this Court finally concluded as under: "The petitioners had their right to object the judgment passed in the writ petition through Intra-Court Appeals but while withdrawing the same or not pressed before the Division Bench, they are estopped to challenge any further before this Court. (6) For the foregoing reasons, these petitions being devoid of merits are dismissed and leave to appeal refused." It follows from the above that the two petitions were dismissed by this Court primarily on the ground that the consent order was passed in Intra-Court Appeals, which were dismissed as withdrawn/not pressed, therefore the petitioner was, precluded from challenging the order passed in appeals before this Court. The judgment of this Court further fortifies stance of the petitioner that now the judgment passed in I.C.As. holds the field and it does not in any way support the cause of respondent No.1.

8. This Court dismissed the petitions on 4-7-2008, while the learned single Judge passed the order on 8-7-2008, which has been challenged before us. We have noticed that the order, dated 8-7-2008 does not even find mention about the judgment passed in appeals by the Division Bench of the High Court and the order, dated 4-7-2008 passed by this Court. We feel that after passing the aforesaid judgment/order, the order dated 30-11-2007 has lost its sting, significance and enforceability. The learned single Judge in his order dated 8-7-2008 not only dismissed petitioner's application for his impleadment in the petition but also directed functionaries of the L.D.A. to implement the judgment, dated 30-11-1997 within three days. To say the least the learned single Judge passed a very harsh and lacunal order in complete oblivion of the judgment, dated 21-1-2008 passed by the Division Bench and the order, dated 4-7-2008 of this Court. It cannot be conceived that parties did not apprise the learned single Judge about the aforesaid judgment/order. We also feel that the learned single Judge had fallen in grave legal error, when he dismissed petitioner's application under Order I, rule 10, C.P.C. on the ground that his identical application in the earlier round of litigation was dismissed. This could not be a sufficient cause, under the circumstances, for non-suiting a person, whose valuable rights are involved in the property and who was deprived of right of hearing at all stages. In the afore-noted scenario, the petitioner was a necessary party in the contempt petition, more so, when in the earlier round of litigation he was condemned unheard. However, as we intend to set aside the order, dated 8-7-2008 passed in the contempt petition and to dismiss the same, therefore the question of impleading the petitioner in the contempt petition has become redundant.

9. Seeing from any angle the judgment, dated 30-11-2007 has merged into the judgment of a Division Bench, therefore, it could not be enforced and implemented through the impugned orders. As we have held that the judgment, dated 30-11-1997 is not in the field, for the enforcement of which the contempt petition was filed, therefore, the contempt petition (Crl.O.103-W of 2008) has become infructuous. In the above perspective, we have examined the impugned orders and came to the conclusion that those orders are not sustainable in law and deserve to be set aside.

10. For the foregoing reasons, the present petition is converted into appeal and allowed, the orders, dated 27-6-2008 and 8-7-2008, passed by the learned High Court are set aside and contempt petition stands dismissed. Before parting with the judgment, it is observed that the learned trial Court, which/is seized of the petitioner's suit, shall decide it, within a period of six months even if it has to undertake day to day proceedings and, of course, in accordance with law. M.B.A./I-12/SC?????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.