2025 PLP 766 (MLD)

Ch. Muhammad Iqbal, J.

Through this petition, the petitioner has challenged the vires of ex-parte judgment and decree dated 30.11.2022, passed by the learned Civil Judge, Faisalabad whereby suit for possession through specific performance filed by respondent No.1 (Akbar Ali) was decreed and also assailed the judgment and decree dated 31.01.2024, passed by the learned Addl. District Judge, Faisalabad who dismissed the appeal of the petitioner.

2. Brief facts of the case as contended by the learned counsel for the petitioner are that respondent No.1 filed a suit for recovery of possession through specific performance on the basis of written agreement to sell dated 12.12.2005 and contended that he purchased plot No.2728 measuring 3-Marlas situated in Tipu Sultan Colony Jaranwala Road, Khurianwala Faisalabad after payment of Rs.1,00,000/-through respondent No.2/Muhammad Mansha. The property was allotted to respondent No.2 by the petitioner's department whereas respondent No.1 stated that he purchased the same on the basis of agreement to sell and paid all consideration. Ex-parte proceedings were initiated against the petitioner department and whereafter after recording the evidence, suit was decreed of respondent No.1 vide judgment and decree dated 30.11.2022. Against the said decree, the petitioner preferred an appeal which was dismissed by the appellate court vide judgment and decree dated 31.01.2024. Hence, this writ petition.

3. Arguments heard and record perused.

4. Admittedly, plot No.2728 was allotted to Muhammad Mansha in which notice was issued on 10.07.2004 to Muhammad Mansha for cancellation and on 24.12.2005 the plot was cancelled. Moreover, as per Regulation No.9(ii) of the Punjab Province Workers' Plots Allotment Regulations, 1976, the allottee shall not be entitled to sublet, mortgage, or sell the plot and any infringement will render the allottee and/or his lessee/mortgager /purchaser or both liable to ejectment from the said plot and cancellation of the allotment. For ready reference regulation No.9 (ii) of the Regulations ibid is reproduced as under:- "ii. The allottee shall not be entitled to sublet, mortgage, or sell the plot. Any infringement will render the allottee and/or his lessee/mortgager/purchaser or both liable to ejectment from the said plot and cancellation of the allotment." Whereafter Housing Scheme Policy 2002 was introduced and as per clause 3.18 of the Policy, the authority is competent to cancel the allotment. For ready reference, clause 3.18 of the Policy 2002 is reproduced as under:- "3.18 Cancellation of allotment of plot/house/flat.- (a) The Competent Authority, may, after notice of show cause to the defaulter for a period of not less than 10 days, order the cancellation of the lease or revoke, tenancy or deed of allotment or title as the case may be in case he decides that the allottee has committed breach of the term and condition of allotment. If such a breach is rectifiable, the defaulter may be given a period not exceeding one month to rectify such breach. (b) The Competent Authority shall also be empowered to forfeit in favour of the Board, the amount deposited by the worker for the allotment of the housing units." Against which, remedy of an appeal is provided in clause3.19 of the Policy ibid which is reproduced as under:- "3.19 Appeals. (a) Any person aggrieved of the order passed by the Competent Authority regarding allotment or its cancellation may file appeal with the Appellate Authority within 20 days of the impugned order. (b) The order passed by the Appellate Authority shall be final and shall not be called in question in any forum." The plot was cancelled on 24.12.2005 but no appeal was filed by Muhammad Mansha. When Muhammad Mansha has no title, as such no effective decree could be passed and this material and legal fact are not considered by the courts below and on the basis of concealment of fact and fraud the decree was obtained by respondent No.1. The allotment order dated 04.04.1997 was produced as Exh.P3 but cancellation order was not produced. Admittedly the suit property is public property and while passing the ex-parte decree/order it is the duty of the court to keep its eyes open with regard to legal and factual aspects involved in suit with the object to protect public interest and public property being its ultimate custodian. Reliance is placed on the case cited as Provincial Government through Collector, Kohat and another v. Shabbir Hussain (PLD 2005 SC 337).

5. Furthermore, the respondent No.1 has not arrayed the Province of the Punjab as party in the suit and it is settled law that in the absence of a necessary party, no effective decree or order can be passed. Reliance in this regard is placed on cases cited as Mst. Maqbool Begum and others v. Gullan and others (PLD 1982 SC 46) and Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Ltd (MBCL) and another (2021 SCMR 305).

6. As the decisions of the lower courts below suffer from blatant non-reading of record as well as mis-application of law, as such the same are not sustainable in the eyes of law and are liable to be set-aside. Reliance is placed on the case titled as Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24).

7. In view of above, this writ petition is hereby allowed. Judgment and decree dated 30.11.2022, passed by the learned Civil Judge, Faisalabad and judgment and decree dated 31.01.2024, passed by the learned Addl. District Judge, Faisalabad are hereby set aside and matter is remanded to the trial court to implead the Province of the Punjab as party in the lis, obtain written statement from defendants and then decided the matter on merits afresh after framing the issues and recording the evidence of both the parties. MQ/D-4/L Petition allowed.