2004 PLP 1218 (YLR)

He further submits that the application of the petitioner was rejected by the respondents on 16-8-2001, therefore, the First Appellate Court erred in law to accept the appeal of the respondents and to dismiss the execution petition of the petitioner as time-barred, without adverting to the wording of Article 181 of the Limitation Act, wherein the Legislature in its wisdom has specifically mentioned when the right to apply accrues which right has been accrued to the petitioner on the rejection of the application of the petitioner on 16-8-2001. In support of his contention, he relied upon the following judgments:-- "Sheo Lal and another v. L. Devi Dasannd another" AIR 1952 Alaabad 900 "Merla Ramanna v. Nallaparaju and others" AIR 1956 SC 87 "Gyaniram v. Gangabai" AIR 1957 MP 85 "Kartar Singh v. Sultan Singh Patrap Singh" AIR 1967 Punjab 375 "Muhammad Hussain and others v. Muhammad Aslam" 1988 SCMR 151

10. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

11. It is better and appropriate to reproduce the basic facts in chronological orders alongwith the operative part of judgment and decree of the learned trial Court dated 10-6-1996 and operative part of judgment of First Appellate Court dated 17-7-1998 to resolve the controversy between the parties:-- (1) The petitioner was allowed to raise constructions over the plot in question through letter dated 17-9-1991. (2) The said letter had been withdrawn by the respondents vide order dated 8-6-1993. (3) During this interregnum period, the petitioner had raised constructions on the plot in question. (4) The petitioner had also deposited the fee in the month of January, 1989. (5) The report was called from the Patwari and Patwari submitted report that scheme was not acted upon and other persons have also raised similar constructions. (6) The petitioner filed a suit for declaration with consequential relief in the Court of Civil Judge 1st Class, Lahore on 13-7-1993. (7) The said suit was decreed on 10-6-1996. (8) The respondents filed an appeal before the learned Additional District Judge, who dismissed the same vide judgment and decree dated 17-7-1998. (9) The respondents filed civil revision before this Court vide Diary No. 1602 on 25-11-1998. (10) Office returned the same to the respondents with certain objections. (11) The respondents never resubmitted the same and it has been become time-barred. (12) The petitioner filed herself Constitutional Petition No.4978 of 2002 without attaching all the pleadings of the Courts below alongwith Constitutional petition in person, which was disposed of vide order dated 28-3-2002 with the observations that the petitioner has alternative remedy to file an execution petition before the Executing Court. (13) The petitioner filed execution petition before the Executing Court on 27-4-2002; whereas the respondents filed objection petition and the learned Executing Court decided both by one consolidated order dated 28-3-2003, wherein the execution petition was accepted and the objection petition was dismissed. (14) The respondents filed an appeal before the learned Additional District Judge, Lahore who accepted the same on the ground that the petitioner did not file an execution petition within three years which is prescribed under Article 181 of the Limitation Act with the lapsed of 286 days. (i) The operative part of judgment and decree dated 10-6-1996 of the learned trial Court. Whether letter dated 8-6-1993 is illegal, void and ineffective qua the plaintiff's right? OPP "So it is proved that the defendants have deviated from the original site-plan. The defendants in rebuttal have failed to produce any evidence. So this issue is decided in favour of the plaintiff." "Keeping in view of my findings on the above issues, I do hereby pass a decree in favour of the plaintiff to the effect that the defendants be restrained from demolishing the constructions of the plaintiff on the plot in dispute, and, to sanction the site-plan as per rules. The parties are left to bear their own costs. " (ii) The operative part of judgment and decree dated 17-7-1998 passed by the First Appellate Court. "Once the permission having been granted and the plaintiff having raised the constructions thereon, defendant No.1/MCL was not competent to withdraw the same in such a slipshod manner especially when the valuable right had accrued to the plaintiff and she had raised construction thereon. The defendants have not led any evidence before the learned trial Court that whether the plaintiff was given any proper opportunity of being heard and in the absence thereof the impugned notice even otherwise is illegal and cannot be given effect too. All these aspects have been considered by the learned trial Court and no exception can be taken to the findings recorded by the learned trial Court in this behalf nor there is any legal infirmity in the impugned judgment. " (iii) It is also better and appropriate to reproduce the contents of the application of the petitioner filed before the respondents on 6-8-2001, which was rejected by the respondent on 16-8-2001.

12. In case, the aforesaid operative part of the and decree dated 10-6-1996 be a whole then, it brings that trial Court has passed in favour of the petitioner (i) The letter dated 8-6-1993 of the respondents was declared illegal void while deciding issue No.4. Consequently the letter dated 17-2-1991 was stood restored automatically. (ii) The respondents were restrained to demolish the constructions of the petitioner on the plot in question. (iii) The respondents were directed to sanction the site-plan as per rule. It is also settled principle of law that simplicitor declaratory decree is not an executable as per law laid down in "Gladstone, Wyllie & Co. Ltd. v. Badsha Miah" PLD 1960 Dacca 305 and "Board of Intermediate & Secondary Education, Lahore and another v. Mrs. Najma Khurshid and another" 2001 MLD

89. It is also settled principle of law that the prohibitory decree can be executed when the prohibitory decree is violated. In arriving to this conclusion, I am fortified by "Shyam Sundar Prasad v. Ramdas Singh" AIR 1946 Patna 392, wherein Article 181 of the Limitation was interpreted in the following terms:-- "Where a decree prohibits the defendant from obstructing a village path it is a decree granting permanent injunction and is not capable of execution on the date it is passed or in other words, until an obstruction is caused there is nothing to execute. In such circumstances, its execution may not be necessary till after 12 years of the date of its passing. As soon as any obstruction is caused and the Court's order in that behalf is breached a cause of action for enforcement of the decree arises. In such cases Article 181 of Limitation Act, applies and not Article 182 and the decree-holder's right to apply accrued only when the obstruction is caused. Such a decree is beyond the reach of the bar provided in section 48, Civil Procedure Code, (21) 8 AIR PC 31". It is also pertinent to mention here that the respondents did not give any threat to the petitioner to demolish her constructions over the plot in question. The respondents had rejected the site plant of the petitioner as directed by the learned trial Court in the said judgment and decree on 16-8-2001. Order 21, rule 32 of C.P.C. applies to the injunction both mandatory and prohibitory. In arriving to this conclusion, I am fortified by the following judgments: -- Pauls's case AIR 1969 Kerala 232 Subbayya's case AIR 1969 A.P. 92 Murari's case AIR 1961 A.P. 482 Abdul Rajack's case AIR 1961 A.P. 482 It is also settled principle of law that there is no ground for non-applying of Order 21, rule 32 of C.P.C. to a case of writ mandamus issued by this Court, if such a suit is in the nature of merely a mandatory injunction issued by the Court. In arriving to this conclusion, I am fortified by "State of Tamil Nadu v. Messrs National Trading Corporation" 1961 L.W.

263. It is also settled principle of law that the application to enforce a decree granting perpetual/ prohibitory injunction is not subject to limitation. In arriving to this conclusion, I am fortified by the law laid down in "Aram Siongh v. Salig Ram" AIR 1975 Ala-abad

11. It is also settled principle of law that if simple prohibitory injunction is disobeyed the fresh cause of action arises for which remedy either by mandatory injunction or in some other way has to state for in a suit as per law laid down by "Him's case" AIR 1957 A.P. 44.

13. In view of what has been discussed above, the judgment of First Appellate Court is not sustainable in the eye of law. It is pertinent to mention here that the petitioner had submitted an application after the judgments of the learned trial Court and the First Appellate Court before the respondents for sanctioning of the site-plan, which was rejected by the respondents without any cogent reasons. It is the duty arid obligations of the respondents to decide the application of the petitioner in accordance with law in view of section 24-A of the General Clauses Act, as per principle laid down by the Honourable Supreme Court in "Messrs Airport Support Service's case" 1998 SCMR 2268. As mentioned above, it is a composite decree, the respondents have no lawful authority in view of two decrees in favour of the petitioner, to demolish the constructions over the plot of the petitioner, therefore, keeping in view the contents of the application of the petitioner, which was submitted by her for sanctioning of the site plan and that the file of the petitioner was misplaced, the respondents are directed to sanction the site-plan of the petitioner in terms of judgment and decree of the learned trial Court within two months afresh. In case, the respondents reject the site-plan of the petitioner then the petitioner is well within her right to avail the proper remedy before the competent authority/Court.

13. At the end, I must put on record my deep sense of appreciation for valuable assistance of the Court by the learned counsel of rival party and the learned Amicus curiae Ch. Hameed-ud-Din, D.A.-G. and Syed Ali Zafar, Advocate, who have taken a lot of pain to assist this Court. This civil revision is disposed of in view of the aforesaid observations. W.A.M./S-5/L Order accordingly.