2017 PLP 206 (CLCN)

MUHAMMAD ALAM, J.

This civil revision petition has been directed against the judgment/decree dated 28/02/2015 of the Senior Civil Judge Gilgit, passed in Civil Suit No.111/2009, and against judgment/decree dated 08/12/2015, passed by the learned Additional District Judge Gilgit in C.F.A. No.07/15. Petitioners have further prayed for acceptance of their petition under Order I, Rule 10(2), C.P.C.

2. Parties to the Civil Suit No.111/2009 are sons and daughters of late Bahadur Khan. It is not disputed that plaintiffs of the said suit are daughters of Mr. Bahadur Khan, while defendants are sons. Plaintiffs to the said suit prayed for their share in the suit lands as well as Rs.33641/- as share of each of the plaintiffs in the compensation amounts of Rs.302771/-. Learned trial Court after completing trial proceedings passed judgment/decree dated 28/02/2015. Feeling aggrieved from the same, plaintiffs of the said suit filed appeal (C.F.A. No.17/15) in the first appellate Court of Additional District Judge Gilgit, who through his short order dated 08/12/2015 dismissed the appeal. For ready reference, I reproduce the order of Additional District Judge Gilgit dated 08/12/2015, passed in C.F.A. No.17/2015, hereunder:- 08-12-2015. "Appellants as usual along with counsel Raja Shakeel Ahmed Advocate present. Respondents Nos.1 and 2 through attorney and counsel Syed Riaz Ahmed Kazmi Advocate present. Counsel for appellants filed an application under Order I, Rule 10, C.P.C. on behalf of mother of private parties for impleading her as party to the suit despite the fact that soon after the attendance of the respondents the petitioner/mother of the parties attended the Court on her own accord to implead her party to the suit but she was directed to file petition in this regard, however she remained till today and filed the instant petition with mala fide intention and just to lingering on the appeal. She may take her Shari share from her sons and contesting respondents are not in possession of suit property till now. Moreover, the petitioner of petition under Order I, Rule 10, C.P.C. is not necessary party to the suit as she is not in possession of any part of the suit land. Hence, petition under Order I, Rule 10, C.P.C. stands dismissed. Learned counsel for appellants despite notice under Order XVII, Rule 3, C.P.C. showed his inability to argue the case with the pretext of the above referred application. In these circumstances the Court has no option but to proceed the appellants under Order XVII, Rule 3, C.P.C. and consequently appeal stands dismissed. Appeal disposed of accordingly. File after due completion be consigned to record." Announced 08-12-2015 Sd/xxx ADDITIONAL DISTRICT JUDGE GILGIT

3. I have gone through the file and have heard learned counsel for parties. In view of the peculiar circumstances of the case in hand, I take up the impugned order of learned Additional District Judge for discussion and avoid to take up the decree/judgment dated 28/02/2015 of the Senior Civil Judge Gilgit for discussion. From plain perusal of impugned order, it is evident that the same has two parts. In the first part of the same, learned first appellate Court has dismissed the application of Mst. Safura wife of Mr. Bahadur Khan (late) that she filed under Order I, Rule 10, C.P.C. Said Mst. Safura filed the said application through petitioners. In the second part of the said order, learned first appellate Court initiated proceedings under Order XVII, Rule 3, C.P.C. against the appellants and dismissed the appeal. Obviously, appeal is continuation of the suit and Mst. Safura, petitioner of the petition under Order I, Rule 10, C.P.C., is wife of Mr. Bahadur Khan (late), therefore, learned first appellate court could implead her to the appeal with direction to write her name in the array of parties in the plaint of suit between the parties or could pass any order regarding her share in the suit property. It is very important to note that the question for solution for trial court as well as for the first appellate court is the question of inheritance.

4. In my opinion, in the circumstances described in impugned order dated 08-12-2015 of the learned first appellate court, the option of exercise of powers of adjournment of the case subject to payment of cost was open to the court and the said court should have exercised the same powers. Learned first appellate court instead of adjourning the case subject to payment of cost passed the impugned order. So, in view of above, the said impugned order of Additional District Judge Gilgit, i.e., the first appellate court is result of improper appreciation of relevant laws, therefore, merits to be set aside.

5. I, therefore, set aside order dated 08-12-2015 of the learned Additional District Judge Gilgit and direct for remand of the case to the first appellate court with direction to pass a fresh judgment/order after hearing the parties on C.F.A. No.17/2015 and on the application under Order I, Rule 10, C.P.C. I further direct petitioners not to alienate the suit property till final orders of the competent court on the case between parties. Learned first appellate court is further directed to give hearing to the petitioners/appellants only if they deposited Rs.25,000/- costs payable to the first set of respondents/plaintiffs and for that purpose the first appellate court is directed to afford only a single chance to the petitioners/appellants. Parties to the case were present in the court through their/attorneys and are directed to appear before the first appellate court on 10-11-2016 for further orders from the said court. Order accordingly. This file be consigned to record. MQ/47/GB Case remanded.