2012 PLP 1255 (CLC)
M.S. QURESHI FLOUR MILLS through Shehzad Qureshi — Petitioner Versus REGIONAL MANAGER, UTILITY STORE CORPORATION, PESHAWAR and 4 others — Respondents
| Citation | 2012 PLP 1255 (CLC) |
| Forum / Court | Peshawar |
| Bench Members | N/A |
| Parties | M.S. QURESHI FLOUR MILLS through Shehzad Qureshi — Petitioner Versus REGIONAL MANAGER, UTILITY STORE CORPORATION, PESHAWAR and 4 others — Respondents |
| Primary Law | Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2012 PLP 1255 (CLC)?
This judgment primarily cites: Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2012 PLP 1255 (CLC)?
The case was heard and decided by the Peshawar bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2012 PLP 1255 (CLC) (M.S. QURESHI FLOUR MILLS through Shehzad Qureshi — Petitioner Versus REGIONAL MANAGER, UTILITY STORE CORPORATION, PESHAWAR and 4 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Khawaja Zaffar Jehangir and Khawaja Aurangzaib Alamgir for Petitioner.
- Fida Gul for Respondents.
Headnotes / Summary
S. 36, O.XXXIX, Rr. 1 &2, O.XL R. 1
Constitution of Pakistan, Art.199
Constitutional Petition
Execution of interlocutory order, when main suit was dismissed as withdrawn
Scope
Application for temporary injunction and appointment of receiver
Contention of the petitioner was that the main suit stood dismissed as withdrawn, therefore, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver could not remain executable under law, and prayed that respondent's application under Section 36, CPC for execution of said order be dismissed
Record revealed that the petitioner's application for temporary injunction and appointment of receiver was declined
Order declining the prayer of the petitioner was in no way executable as no order in terms of the Section 36 of the CPC was passed
Even if it was assumed that there was such an executable order, then the same stood merged into the main order, whereby the suit of the petitioner was dismissed as withdrawn
No executable order had been passed in the case
Orders of courts below were without jurisdiction and lawful authority and were set aside
Constitutional petition was allowed, accordingly.
Judgment & Decree
EJAZ AFZAL KHAN, J.
Petitioner, through the instant petition, has questioned the order dated 28-6-2011 of the learned Additional District Judge-II, Peshawar, whereby, he dismissed its revision petition and maintained the order dated 27-1-2011 of the learned Civil Judge, XIV, Peshawar.
2. The learned counsel appearing on behalf of the petitioner contended that where the main suit stands withdrawn, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver couldn't remain executable under any canons of law and procedure.
3. As against that the learned counsel appearing on behalf of the respondents contended that the interlocutory order passed by the learned Trial Court on the application of the petitioner for temporary injunction and appointment of receiver wouldn't only remain in the field but would also be executable in terms of section 36 of the C.P.C. The learned counsel to support his contentions, placed reliance on the cases of Haji Abdul Wali Khan and another v. Muhammad Hanif and another (1991 SCMR 2457) and Khaavir Saeed Raza v. Wajahat Iqbal (2003 CLC 1306)
4. We have gone through the record carefully and considered the submissions made by the learned counsel for both the parties.
5. The record reveals that the petitioners filed an application for the issuance of temporary injunction and appointment of receiver, which was declined. The said order was also upheld by this Court vide order dated 3-11-2009. A look at the order dated 27-1-2011 would reveal that the learned trial Court, after considering all the pros and cons of the matter declined the prayer of the petitioner for the issuance of temporary injunction as well as appointment of receiver. The order declining the prayer of the petitioner is, in no way, executable because no order in terms of section 36 of the C.P.C. was passed. Even if, for a while, it is assumed that there was an executable order, that stood merged into the main order, whereby, the suit of the petitioner was dismissed as withdrawn. Reference of the cases Haji Abdul Wali Khan and another v. Muhammad Hanif and another and Khaavir Saeed Raza v. Wajahat lqbal (Supra) wouldn't, in any way, advance the case of the respondents as in that case there was an executable order, whereas, no such order has been passed in the case in hand. The orders of the learned Courts below, therefore, being without jurisdiction and lawful authority can't be maintained.
6. For the reasons discussed above, we admit and allow this writ petition and set aside the impugned orders of the Courts below. However, none of the observations, mentioned above, in this case, will debar the respondents from the recovery of the amount, if any, against the petitioner through the mode, prescribed by law, for the recovery of arrears of land revenue in addition to any other mode. K.M.Z./65/P Petition allowed.