2004 PLP 1372 (YLR)

Date of hearing: 9th January, 2004. CHAUDHARY MUHAMMAD TAJ, J.‑‑‑This appeal, by leave, is directed against the judgment and order passed by the High Court on 17‑12‑2002.

2. The facts necessary for the disposal of this appeal are that Vehicle No.GLT 9615 (Truck) was seized by Thorar police which was given to the appellant on ' Superdari' by Magistrate 1st Class, Thorar, vide his order dated 1‑7‑2000. Respondent No.1 moved an application for cancellation of the order passed in favour of the appellant. The application was accepted and the order of ' Superdari' was passed in favour of the respondent. The appellant challenged the aforesaid order dated 10‑9‑2000 through a revision petition before the Sessions Judge, Rawalakot/Poonch which was accepted and the order passed by the Magistrate was set aside. It was ordered that the custody of the Truck be given to Police Station Thorar and respondent No. 1 was directed to seek declaration of the title from the Civil Court through his order passed on 8‑10‑2002. Two revision petitions challenging the order recorded by the Sessions Judge, Rawalakot on behalf of the appellant and respondent No. 1 were filed in the High Court. Meanwhile, the appellant herein filed a civil suit in the Court of District Judge, Rawalakot with regard to the said vehicle for recovery of an amount of Rs. 11,5 1,000 from respondent No.2 alongwith the declaration of title. An application for interim injunction was also filed which was allowed in the terms that the defendant shall not take possession of Truck No. GLT‑9615 and also to refrain from taking the vehicle to Pakistan. The learned Single Judge in the High Court, seized with the criminal revision petitions, also treated the civil miscellaneous application under rule 6, sub‑rules (vi) and (vii) of the High Court Procedure Rules, 1984 when the copy of the stay order issued by the Civil Court was placed on record. The learned Chief Justice in the High Court finally held the order passed by the District and Sessions Judge, Rawalakot as illegal and set aside the same. The custody of the truck was held to be handed over to respondent No.1. S.S.P. Poonch was directed to hand over the custody and also to take action against S.H.O. for seizing the truck from outside his jurisdiction. It was further held that in view of the stay order of the Court respondent No.1 shall execute a bond that in case the case is decided against him he will hand over the truck or its price to the person who is held entitled to it. The order passed by the High Court was challenged in this Court on the following main grounds:‑‑ (i) That the High Court has passed an order which is against the facts and law, therefore, is arbitrary; (ii) that the learned Judge in the High Court has practically decided the civil suit without any appeal or revision before him against the order recorded by the trial Court. The High Court could not treat the cause as held by it under the High Court Procedure Rules, 1984; (iii) that there was no material available with the High Court to hold that the truck in dispute was seized from outside the jurisdiction; and (iv) that the order passed by the High Court for handing over the truck to respondent No.1 was an arbitrary order which could not be recorded in view of the legal position that proceedings before the criminal Court were held illegal and the Civil Court had yet to decide the matter.

3. Initially, both the learned counsel representing the parties, Mr. Abdul Rashid Abbasi and Ch. Muhammad Ibrahim Zia, attempted to place their point of view. However, later on they contended that the proceedings before the Magistrate, Sessions Judge and the High Court were illegal and could not be maintained as there was no case registered justifying the seizure of the truck and thus passing an order of 'Superdari' in favour of the appellant or respondent and thereafter recording the order by the Sessions Judge in his revisional jurisdiction. It was also argued that the whole proceedings upto the High Court, in the circumstances, be quashed and the civil suit pending in the Civil Court may be allowed to proceed without being influenced by any observation.

4. In view of the joint statement and suggestion made by the learned counsel, need does not arise to go into the other merits but for the administration of justice and future guidance, we agree with the legal aspect of the order passed by the High Court whereby it was held that the proceedings taken in respect of seizure of the truck by the police and thereafter proceedings of 'Superdari' undertaken by the Magistrate and exercising the revisional jurisdiction by the Sessions Judge are illegal but the other part of the order which amounted to modify the order passed by the Civil Court without any appeal or revision and treating the same as miscellaneous application under the High Court Procedure Rules, 1984 was 'against law. District Judge, the trial Court in its original jurisdiction had to conclude the suit and the stay order issued under Order 39, rules 1 and 2 of the Civil Procedure Code was appealable and no such appeal or revision was ever filed. Even during the proceedings before the High Court ho notice was issued to the parties to be heard on the aforesaid subject. It may further be added that no law provided that the High Court could hand over the disputed truck to anyone and directing the police for implementation of the order.

5. In view of the above state of facts and law, we are of the view that the proceedings undertaken by Thorar Police and thereafter the proceedings taken by the Magistrate and the Sessions Judge are illegal as such are not maintainable. The order recorded by the High Court is also not maintainable and we set aside the same by accepting the appeal. However, we would like to observe that in the given circumstances when a civil suit has been filed by the appellant and an interim injunction has also been. issued the Civil Court shall be free to decide the matter in accordance with law. Till the matter is decided or otherwise possession of the truck is regulated by the competent Court, it shall remain with Thorar Police. N.H.Q./70/SC(AJK) Appeal allowed.