1993 PLP 1556 (CLC)

The aforesaid order was challenged in appeal by the respondents which was dismissed on 18th December, 1991, thereafter a Civil Revision being No.48/92, was filed before this Court which was disposed of vide order dated Ist April 1992, whereby the order under challenge was set aside and case was sent back to the Appellate Court for the disposal of the appeal.

2. On remand of the case on account of the death of Sardar Taj Muhammad Rind, petitioners were impleaded as his legal heirs and Appellate Court set aside the order of the trial Court dated 26th November 1991, as such instant proceedings.

3. Mr. Muhammad Riaz Ahmed appeared on behalf of petitioners and contended that appeal before the Appellate Court was not competent in view' of the bar created by section 9 of the Specific Relief Act. The order of the Qazi dated 26th November 1991, was not amenable to appeal as it was passed .with lawful authority and jurisdiction. ' 3‑A. M/s. Muhammad Aslam Chishti and. Niarin Das D. Kapoor Advocates, argued on behalf of the respondents that the trial Court had passed order dated 26th November 1991, on an application under Order 40, rule 1, C.P.C., therefore, it was challengeable before the next higher Court. In the Civil Revision No.48/92 the case was remanded by this Court with the consent of parties and the predecessor‑in‑interest of the petitioners was very much aware about the legal position and he had consented for the remand of the case. As such, the petitioners are estopped to challenge the jurisdiction of the Appellate Court. The order of depositing share of petitioners was passed by the trial Court without strictly adhering to the provision of Order 40, rule i, C.P.C.

4. The next question requiring consideration in the instant case relates to the maintainability of the appeal against the order of the trial Court, therefore, it would be expedient to reproduce here in below section 9 of the Specific Relief Act: "

9. Suit by person dispossessed of immovable property.‑‑If any person is dispossessed without his consent of immovable property otherwise than in due course of law; he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this section shall be brought against the Central Government, or any Provincial Government. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed:' A perusal of above provision manifestly makes it clear that no appeal shall lie from any order or decree passed in suit instituted under the aforequoted section. It may be noted that right to file a suit for restoration of the possession has been conferred upon an aggrieved person notwithstanding the fact whether he has legal title in his favour to remain in the possession of the property or not. The Court while discharging function is bound to exercise jurisdiction within the four corners of section 9 of the Specific Relief Act.

5. It is to be seen that as far as order passed on an application under Order 40, Rule 1, C.P.C., or any other provision of the law other than section 9 of the Specific Relief Act can be considered to passing of an order under section 9 of the Specific Relief Act. The provisions of the law reproduced hereinabove, specifically mentioned that any order or decree passed in suit shall not be appealable and the aggrieved party would have a right to file a suit j challenging that decree on the basis of the title in the property if he has so. It would mean that any order on the suit, instituted on a plaint under section 9, Specific Relief Act would not be appealable. Mr. Muhammad Riaz Ahmed in the support of his contention referred to Muhammad Omar Khan v. Muhammad Asif and others PLD 1964 (West Pakistan) Peshawar 157, Mst. Jhali and others v. Lal Khan and ahother 1992 CLC 2320. As far as principles laid down in these reported judgments arc concerned 1 respectfully endorse the same but in the case in hand the question is slightly different. It is to be observed that‑ the Court while exercising jurisdiction under section 9 of Specific Relief Act, is supposed to dispose of the matter on the basis of the pleadings of parties. As far as passing of any other order like on an application under Order 40, Rule 1, C.P.C., is concerned that would not be termed as an order passed under section 9 of the Specific Relief Act. In this behalf it is further added that if any such order on miscellaneous application is passed that would be deemed as an order beyond the purview of, section 9 of the Specific Relief Act. To substantiate the legal position I may refer AIR 1937 Sindh 161, relevant para. for reference is reproduced below: i "The last paragraph of section 9 would appear in explicit terms to forbid an appeal against an order or decree passed in a suit instituted under this section. It is, however, argued before us that this bar cannot relate to an order passed without jurisdiction, and that as this order is passed under Order 40, R.1, Civil P.C. which is an appealable order under Order. 43, Civil P.C". Because the order under Order 40, Rule 1, C.P.C. is not covered within the prohibitory clause of section 9 of the Specific Relief Act, therefore, am inclined to hold that the appeal was competent before the Appellate Court/Majlis‑e‑Shoora.

6. So far the merits of the case are concerned whereby the respondents have been directed to deposit Rs.9,804 towards the share of produce of the petitioners' predecessor‑in‑interest, it is to be seen that under Order 40, I Rule. I., C.P.C., it is essential for the Court to examine whether the title of the plaintiffs/applicants is valid and it is also just and convenient to appoint receiver or not, whether plaintiff has proved strong, prima facie case in his favour to the effect then ultimately he would succeed in getting relief as prayed for, coupled with the fact that what are those circumstances which warrant immediate appointment of the receiver. In my view the learned trial Court had absolutely ignored these principles while passing the order under consideration. Even otherwise the nature of the order indicates that the Court while disposing of application was not competent to pass such type of order, therefore, on this score as well the order dated 26‑11‑1991, was not sustainable. The Majlis‑e‑Shoora has thoroughly considered all the relevant aspects of the case and formed the opinion which is not open to any exception in the revisional jurisdiction. For the foregoing reasons I see no force in the petition which is dismissed, leaving the parties to bear their own costs. AA./42/Q petition dismissed.