2005 PLP 1673 (CLC)

Dilawar Khan, plaintiff instituted suit in the Court of Senior Civil Judge/Aala Illaqa Qazi, Swat against Rahmat Ali and others, defendants praying for grant of permanent injunction restraining defendant No. 1 from demanding/recovering an amount of Rs.1,14,000 from the plaintiff. The suit was accompanied by an application duly supported by an affidavit for issuance of temporary injunction, in the above lines. The application was resisted and stay order issued earlier was recalled by learned, trial Judge through his order, dated 15-9-2004. An appeal was preferred thereagainst which was accepted, by learned Additional District Judge/Izafi Zilla Qazi, Swat by his order dated 6-11-2004. The order of the trial Court was set aside and temporary injunction was issued in the matter.

2. The petitioner has called in question the impugned order, dated 6-11-2004 by way of filing instant civil revision under section 115 of the Code of Civil Procedure Act No.V of 1908.

3. Mr. Muhammad Yousaf Khali Yousafzai, Advocate for the petitioner vehemently contended that the learned trial Judge recalled the stay order for valid reasons and learned Appellate Court had no justification to take a contrary view, accept the appeal and set aside the impugned order. The learned counsel maintained that the material on record has not been taken into consideration and the impugned order has been recorded in a mechanical manner without application of mind.

4. Mr. Abdul Latif Afridi, Advocate for respondent No.1, on the other hand defended the impugned order wholeheartedly and submitted that having regard to facts and circumstances of the case, learned Appellate Court was quite justified to accept the appeal and reverse the impugned order.

5. The petitioner and respondent No.1 are Forest Contractors. They had joint business. The partnership was terminated in the year 1994. In order to resolve the disputes, Arbitrators were appointed by the parties. According to the Arbitrators an amount of Rs.1,14,000 of respondent No.1 was found outstanding against the petitioner. A deed to this effect was reduced into writing on 2-6-2004, whereby the petitioner was required to pay the aforesaid amount to respondent No.1 in lieu receipt of the deed in question statedly lying with Abdul Malik, Petition Writer, respondent No.4 herein. The petitioner issued a cheque in the name of respondent No.1, which was not honoured due to want of amount in the Account of the petitioner. This necessitated respondent No.1 to move an application before the Senior Superintendent of Police, Swat, for initiating criminal proceedings against the petitioner. The application was marked to D.S.P. (Legal), Swat in pursuance whereof a case under sections 419/420 was ordered to be registered against the petitioner.

6. Needless to emphasize that continuance of criminal proceedings side by side with civil proceedings would not advance cause of justice particularly when dissolution of partnership and execution of initial agreement had been admitted by both the parties and verdict in civil proceedings would have considerable bearing on fate of criminal proceedings. It has been consistently held by the superior Courts that where Civil Court had taken cognizance and is deciding the same issue, filing of the private complaint and pendency of the same before the trial Court is abuse of process of law. When the case is purely of civil nature, criminal proceedings are not warranted in law and shall be stayed till the final disposal of the civil suit. In this regard reference may profitably be made to: Mst. Bismillah v. Pervez Subhani and another 1982 PCr.LJ 93 (Karachi); Javaid Hamid v. Hassan Jan and 2 others PLD 1991 Pesh. 121 (Lahore); Muhammad Bashir v. Fazal Hussain and 2 others 2002 PCr.LJ 513 (Lahore); A-Habib Ahmad v. M.K.G. Scott Cristian and 5 others PLD 1992 SC 53 and Ch. Pervez Elahi v. The Federation of Pakistan and 3 others 1995 MLD 615 (Lahore). In the result and for the foregoing reasons, I find that the impugned order is flawless and hardly calls for interference of this Court in its revisional jurisdiction under section 115, C.P.C. The civil revision having been found bereft of substance, is dismissed and the impugned order is maintained. I make no order as to costs. H.B.T./467/P Revision dismissed.