2007 PLP 1479 (YLR)

SYED ASGHAR HAIDER, J.--This petition is directed against the judgment dated 22-4-2006 passed by the Additional District Judge, Okara affirming the judgment and decree dated 13-4-2006 passed by the Civil Judge, Okara whereby the suit for possession filed by the plaintiff/petitioner was dismissed.

2. The petitioner is owner of plot measuring 2 Marlas and 1 Sarsahi, located in Saith Colony, Okara through a registered sale-deed dated 15-3-1975, a mutation to this effect was also sanctioned on 20-8-1989. The respondent No.1 filed a suit for Specific Performance through an oral agreement dated 1980, entered into between him and Ahmad Mustafa deceased through his daughter Mst. Mubaraka Begum, a consenting written statement was filed, thereafter the suit was decreed, execution application was filed, in garb of these proceedings, the respondent No.1 took over the possession of the petitioner's plot. The petitioner filed a suit for possession on the basis of registered sale-deed in his favour to retrieve possession. An application under section 12(2), C.P.C. was also filed challenging the judgment and decree. The suit and application were contested by the defendants/respondents, issues were framed, the parties were put to trial, the trial Court dismissed the application under section 12(2), C.P.C. and also the suit for possession. Aggrieved, thereof, an appeal was filed by the petitioner before the Additional District Judge, Okara who appointed the Naib Tehsildar, Okara, as Local Commissioner, he inspected the spot and filed report on 4-1-2006. The petitioner filed objections to this report, the lower Appellate Court without deciding these objections dismissed the appeal, hence the present petition.

3. The learned counsel for the petitioner submitted that the lower Appellate Court committed grave illegality and acted against settled principles of law, according to him, all miscellaneous applications are to be decided independently before passing of the final judgment. He relied on the following precedents: (i) (2005 CLD 875), titled ."Messrs M.A. Chaudhry and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney". (ii) (2005 CLD 1741) titled "Shabbir Ahmad Malik v. Small Business Finance Corporation, Okara, through Manager" and (iii) (2005 CLD 688) titled "Multan Edible Oil Extraction Limited v. National Bank of Pakistan and 2 others."

4. The learned counsel for the respondents vigorously defended the impugned judgment and submitted that the lower Appellate Court had impliedly rejected the application which is reflected from the judgment, he however, conceded that no independent order to the effect was passed but this minor error cannot affect the outcome of proceedings.

5. I have heard the learned counsel for the parties and perused the impugned judgment.

6. It is clear from record that objections were filed to the report and they are part of record, it is also clear from record that they have not been adjudicated or decided, the impugned judgment does not reflect or mention the disposal of these objections, therefore, they are still pending, this is violative of law, and the following precedents: (i) (2005 CLD 875), titled "Messrs M.A. Chaudhry and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney". (ii) (2005 CLD 1741) titled "Shabbir Ahmad Malik v. Small Business Finance Corporation, Okara, through Manager" and (iii) (2005 CLD 688) titled "Multan Edible Oil Extraction Limited v. National Bank of Pakistan and 2 others."

7. Therefore, the impugned judgment suffers from a patent illegality and cannot sustain. Resultantly this petition is allowed, the impugned judgment dated 22-4-2006 passed by the Additional District Judge, Okara, is set aside. The proceedings would deem to be pending before the Additional District Judge, Okara, who shall decide them independently and thereafter, proceed to decide the appeal on merits in accordance with law. F.B./M-21/L??????????????????????????????????????????????????????????????????????????????????????? Case remanded.