2004 PLP 1820 (MLD)

The appellant has challenged the vires of order dated 20-3-2004 through this appeal on the ground that the case was fixed before the learned trial Court on 17-3-2004 and adjourned for arguments of learned counsel of the parties for 16-4-2004. Subsequently, the date was changed without intimation to the learned counsel of the appellant from 16-4-2004 to 18-3-2004. Thereafter the case was fixed on 18-3-2004 and learned counsel of respondents has argued and case was adjourned for arguments of learned counsel of appellant/defendant for 20-3-2004.

2. The impugned order was passed by the Court below without providing proper hearing to the appellant, therefore, the same is without lawful authority and is hit by principle of natural justice.

3. The learned counsel of the respondents raised preliminary objection in view of Order 39, rule 4, C.P.C. That appellant has attei native remedy to file an application for vacation of stay order before the learned trial Court, therefore, the appeal filed by the appellant directly before this Court without exhausting the remedy under the provisions of C.P.C. Is not maintainable. In support of his contention, he relied upon "Pakistan Engineering Consultant's case" (1993 CLC 882) and "Abrar Ahmad Khan Tareen's case" (1994 SCMR 1764).

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

5. The learned trial Court has ample powers under Order XXXIX, rule 4, C.P.C. To discharge, vary of set aside injunctive order which is not confined only in case of ex parte injunctive order passed before issuance of notice to opposite party. It can be exercised keeping in view the circumstances of each case, which makes injunctive order harsh or unworkable. In arriving to this conclusion, I am fortified by the following judgments: "Muhammad Yousuf v. Mst. Sabira A. Muhammad and others" (1990 CLC 1127). It is also settled principle of law that once a Court has decided a matter after giving to each side an opportunity of being heard, its order is final and cannot be reopened except on presentation of some new material not available when the original order was passed. In arriving to theconclusion, I am fortified by the law laid down in following judgments: "Sind Madrasatul Islam Board Society v. Shamim" (1982 CLC 2242). "Muhammad Inam v. Dr. Muhammad Safdar" (1988 CLC 230).

6. It is better and appropriate to reproduce the material facts inchronological order to resolve the present controversy between the parties: (1) Order dated 17-3-2004. (2) Order dated 18-3-2004. Final Order dated 20-3-2004. Present: Counsel for the plaintiff. Nobody has appeared on behalf of defendant No.1 although the suit has been kept waiting for whole day. The learned counsel for defendant No.2 has submitted that defendant No.2 is not a contesting party and he does not oppose the petition for temporary injunction. The learned trial Court confirmed order dated 18-3-2003 vide impugned order dated 20th March, 2004. Mere reading of order dated 17-3-2004, prima facie reveals that case was adjourned for 16-4-2004 and subsequent date was changed from 16-4-2004 to 18-3-2004 as is visible from the order dated 17-3-2004. Subsequently, the order also reveals that although the counsel of the parties were present. The learned counsel of the respondents has argued the case and the case was adjourned for arguments of learned counsel of the appellant for 20-3-2004 which clearly reveals that the case was adjourned for 20-3-2004 from 18-3-2004 without making any request by the learned counsel of the appellant/respondent. This fact alone brings the case in the area that the learned trial Court has decided the case without application of mind, which is condition precedent as per law laid down by the Honourable Supreme Court in "Mollah Ejahar Ali v. Government of East Pakistan. And others (PLD 1970 SC 173). After addition of section 24-A in the General Clauses, it is the duty and obligation of even public functionaries to decide the controversy between the parties after-application of mind with reasons as per law laid down by the Honourable. Supreme Court in "M/s. Airport Support Service's case" (1998 SCMR' 2268)

7. In case, the aforesaid orders are put in juxta-position, then it is crystal clear that the impugned order was passed in violation of principle of natural justice, therefore, the impugned order is not sustainable in the eye of laws. It is settled principle of law that nobody should be penalized by the act of Court, as per law laid down by the Division Bench of this Court in "Mian Irshad Ali. v. Government of Pakistan and others" (PLD 1975 Lahore 7). It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per law laid down by the Honourable Supreme Court in "Trustee Board's case (1994 SCMR 2213). The objection raised by the learned counsel of the respondents has no force in view of Order XLIII, rule 1(R), C.P.C.And it is admitted fact that the Legislature in its wisdom placed the order XXXIX, Rule 4, C.P.C. Before the order XLIII, rule 1(R) of C.P.C. Itis settled principle of interpretation that later provision of law will hold in the field. Even otherwise as mentioned above, the impugned order is appealable under Order XLIII, rule 1(R), C.P.C., as per principle laid down in the following judgments: "District Council Haripur v. Zaheerullah Khan."(PLD 1994. Peshawar 228). "Poineer Pakistan Seed Ltd. v. United Distributors."(1998 CLC 61). "Shah Jehan Khan v. Fazal-ur-Rehman Khan and others" (2001CLC 1695). "Haji Abdul Ghafoor Akhtar v. Malik Tahir Mukhtar."(2001 CLC 1721).

8. In view of what has been discussed above, the appeal is accepted and the impugned order dated 20-3-2004 is set aside meaning thereby the application of appellant shall be deemed to be pending adjudication before the learned trial Court. The learned trial Court is directed to decide the application of the respondents afresh after providing proper hearing to all the concerned in accordance with law without being influenced by the observations of this Court. The parties are directed to appear before the learned trial Court on 12-7-2004, who is directed to decide the matter in terms of aforesaid direction of this Court. The appeal is disposed of in terms of aforesaid direction. M.I./M-555/L Appeal accepted.