2018 PLP 276 (YLRN)

ABDULLAH BALOCH, J.

The Civil Revision Petition is directed against the judgment and decree dated 13th March 2010 (hereinafter referred as, "impugned judgment and decree") passed by the learned Civil Judge-IV, Quetta (hereinafter referred as, "the trial Court"), whereby the suit filed by the private respondent was decreed and judgment and decree dated 29th October, 2010 passed by the learned Additional District Judge-V, Quetta (hereinafter referred as, "the Appellate Court"), whereby appeal filed by the petitioners was dismissed.

2. Brief facts arising from the instant petition are that the private respondents Nos.1 to 38 filed a suit for declaration, permanent injunction and consequential relief in the Court of Civil Judge-IV, Quetta with the averments that they are owner of cabins/Khokhas located near the office of Pak P.W.D/old A.G. Office, Burma Hotel Sariab Road, Quetta and earning their livelihood from the said cabins.

3. It is further averred from the plaint that they had installed their Khokhas and cabins in the year 1984/85 with the permission of defunct Quetta Municipal Corporation and started paying of taxes till date through National Bank of Pakistan in account A/C No.4394-7 in favour of defendant No.2.

4. It is further submitted by the plaintiffs/private respondents that in the year 2006 the cabins/khokhas were damaged/burnt after the assassination of Nawab Muhammad Akbar Khan Bugti by the participants of processions/miscreants. On demand of respondents/plaintiffs, a high power meeting was held under the Chairmanship of Chief Minister of Balochistan on 30th August, 2006, where certain demands of citizens and respondents/plaintiffs were considered, according to clause 6, the owners of destroyed/ burnt Khokhas were allowed to reinstall their Khokhas keeping in view, there would be not encroachment and Khokhas would be placed in original places i.e. near A.G Office and Pak P.W.D. Colony, the Nazim City District Government Quetta addressed letter No.CDGQ/PS/30 dated 05111 September, 2006 to Muhammad Yaseen Mengal, President, Anjuman-e-Tajiran Sariab Quetta.

5. It is added by the respondents/ plaintiffs that on abolition of system of local administration headed by the Nazims in respective areas, the plaintiffs have been called upon to remove their cabins/ khokhas immediately, otherwise the same would be removed by force without issuing any show cause notice or letter by the defendant No.1, hence filed the instant suit for restraining the defendants for taking any action against the plaintiffs.

6. The suit was contested by the defendant No.1 i.e. T.M.O Chiltan Town, Quetta by means of filing written statement, wherein categorically admitted the claim of the plaintiffs/private respondents, while the defendant No.2 was proceeded against ex parte.

7. After hearing the parties without framing issues and recording evidence, the learned trial Court decreed the suit of private respondents/plaintiffs vide impugned judgments and decrees as mentioned above in Para. No.1.

8. Being aggrieved, the defendant No.2 i.e. Chiltan Town through its Administrator filed an appeal under section 96 of C.P.C. in the Court of Additional District Judge-V. Quetta which was also contested by the private respondents/plaintiffs, after hearing the parties the appeal was dismissed vide impugned judgment and decree dated 29th October, 2010, hence this petition filed by the petitioner i.e. Quetta Metropolitan Corporation.

9. The learned counsel for the petitioner contended that the judgments and decrees passed by the Courts below suffers from misreading, non-reading and misappreciation of law; that both the Courts below have failed to frame issue and record evidence, as such the petitioner was condemned unheard without affording opportunity of defence; that the private respondents were in league with the then T.M.O. and managed the same just to obtain a decree behind the back of petitioners; that the written statement filed by the then T.M.O. on behalf of the former Chiltan Town was without lawful authority and no mandate was given to him to file such written statement and with mala fide intention he has admitted the claim the private respondents; that infact there was no cabins/khokhas were available in front of A.G. Pak PWD building and there is a footpath, which is being used as passage by the passerby's, but by the garb of impugned judgment and decrees, the private respondents are trying to usurp the footpath and encroach on the Sariab Road, which is already narrow and close, because of heavy traffic and for the number of times the traffic would become jam for hours; that the impugned judgments and decrees also suffer from material illegalities and irregularities, which are not sustainable and liable to be set aside.

10. Conversely, the learned counsel for the private respondents vehemently opposed the arguments so advanced by the learned counsel for the petitioners and contended that the private respondents are victims of the protestors/miscreants and their cabins were destroyed/ burnt by the protestors at the time of assassination of Nawab Muhammad Akbar Khan Bugti in the year 2006, that the plaintiffs without any agitation and taking of law in their hands have legally approached the then Government for redressal of their grievances and the then Chief Minister was pleased to constitute and convene meeting and after proper inquiry and investigation the cases of plaintiffs were found genuine as such, they were allowed to reinstall their cabins on the said places without any encroachment and the permission was granted by the then City Nazim and thereafter the plaintiffs reinstalled their cabins on the said places, but all of sudden due to change of local bodies system in the year 2010, the plaintiffs were called to remove their cabins illegally and unlawfully by the Municipal Administration; that the plaintiffs/ private respondents produced sufficient documents in favour of their claims before the learned trial Court; that the claim of the plaintiffs was admitted by the defendants and the learned trial Court after proper appreciation of documents has rightly decreed the suit in favour of the plaintiffs/private respondents and the appeal of the petitioner was rightly dismissed by the appellate Court; that concurrent findings are in the field against the petitioner, which are not open for interference by this Court.

11. Heard the learned counsel for the parties and perused the record minutely, which reflects that the private respondents/ plaintiffs had claim to be the authorized owner of the cabins and khokhas located in front of A.G. Pak PWD building Burma Hotel Sariab Road, Quetta and the same were destroyed and burnt by the protestors at the time of procession and protest against the assassination of Nawab Muhammad Akbar Khan Bugti in between 26 to 28 August, 2006.

12. It is further the claim of the plaintiffs that the permission was already obtained by the plaintiffs for installation of cabins/khokhas from the office of Quetta Municipal Corporation Committee in the year 1984/1985 and they had paid all taxes in favour of Q.M.C. since 1984/ 1985 to 1995.

13. In support of their of claims they have annexed copies of certain deposit slips of National Bank of Pakistan and certain copies of receipts issued by the Q.M.C. pertaining to different dates and years mostly of 12th July 1985 and 15th July 1994 issued in the name of different persons, but there is no N.O.C./ permission with regard to the installation of cabins and khokhas are available in the record in support of their claims to ascertain whether infact permission for installation of cabins/khokhas were granted in favour of the respondents/ plaintiffs by the Municipal Committee/ the petitioner or any competent authority.

14. The record further reveals that the suit was contested only by the defendant No.1 i.e. T.M.O. Quetta (the then Chiltan Town Quetta), wherein the claim of plaintiffs/private respondents was fully admitted rather in reply of Para No.5 it was mentioned that:-- "

5. That the cause of action has accrued to the plaintiffs against the defendants Nos.2 and 3 because the defendant No.3 removed the said cabins/khokhas of plaintiffs."

15. The such admission at the part of defendant No.1 not only showing that the respondent No.1 was in league with the plaintiffs, but such admission in para No.5 of written statements showing that the T.M.O. was more active from the respon-dents/plaintiffs, like:

16. Because in their plaint nowhere it was mentioned by the plaintiffs that their khokhas/cabins were removed by defendants, rather they had mentioned that: "The cause of action accrued lastly a week back when defendant No.2 without any justification called upon the plaintiffs for removing their cabins/khokhas and two days back advanced threats to the plaintiffs for forcibly removing the khokhas, which cause of action subsist within jurisdiction of this Court."

17. As such, the learned counsel for the petitioner has rightly pointed out that the then T.M.O. was in league with the plaintiffs for admission of their claims behind the back of petitioner.

18. The next contention of learned counsel for petitioner was that the counsel appeared on behalf of the defendant No.1 was also kept in dark by the defendant i.e. T.M.O. Chiltan Town and he was not able to properly assist the Court, observations made in impugned judgment reflects that: "Notice of the same was given to defendants whereas defendant No.1 filed his written statement in which he admitted the contents of suit. Mr. Naseer-ud-Din Mengal Advocate appeared on behalf of defendant No.1 and contended that the office of defendant No.2 is vacant as no such administrator has been appointed by Government of Balochistan so the charge of defendant No.2 is also with the defendant No.

1. Defendant No.3 is also been proceeded with ex-parte."

19. In view of the above, the contention of learned counsel for petitioner having weight that in all proceedings the rights of defendants were not properly defended.

20. Learned counsel for petitioner further contended that the letter No.CDGO/PS/13 dated 5th September, 2006 issued by the then City Nazim was relied upon by the private respondents/ plaintiffs with regard to the permission of reinstall-burnt damaged khokhas at Sariab Road adjacent Burma Hotel, Quetta was also tampered by the plaintiffs by adding hand written after words: "Keeping in view that there is not encroachment and khokhas will be placed on its original places near A/G office and Pak PWD Colony Sariab Road Qta."

22. The above adding made by hand written creates serious doubt in the authenticity of the such letter, as such, without recording evidence and confronting the same with the original one it could not be admissible.

23. Moreover, the petitioner also filed certain letters through C.M.A. No.956 of 2013 on 2nd October, 2013 issued by the Government of Pakistan Public Works Department, Deputy DCO, Capital City Police Officer, Executive Engineer of PWD, Town Municipal Officer Chiltan Town Quetta, Assistant Commissioner Quetta. The perusal of all above letters reflects that the officials were corresponding with regard to the installation of illegal cabins along with boundary wall of Federal Government Office Complex, Sariab Road, Quetta.

24. In view of above, the judgments and decrees passed by the Courts below did not carry any weight without adhering and adverting into the root causes of the case being public importance and merely on the admission of a T.M.O. being unauthorized by the Municipal Corporation decreed the suit of the plaintiffs/private respondents without framing issues and without recording evidence, the same suffers from misreading, non-reading and mis-appreciation of law also suffers from illegalities and irregularities void ab initio. Thus the petition is partly allowed, the impugned judgments/decrees dated 13th March and 29th October, 2010 respectively passed by the Court below are hereby set aside and the case is remanded to the trial Court with the directions to provide full and fair opportunity to the parties to file their relevant written statements, frame issues and after recording evidence decide the same on merits in accordance with the law within a period of three months. ZC/34/Bal. Case remanded.