2010 PLP 658 (CLC)

ABDUL AZIZ KUNDI, J.

Marorang and his two brothers sons Mawas sued residents of `Mauna Beshooni', District Buner through their representatives Sahib Gul and five others for declaration, injunction and possession in respect of land measuring 42 Kanals 16 Marlas comprising Khasra No.405, `Khata Khatooni' No.139/136. The suit was instituted on 6-7-2001 and in para 1 of the plaint it was categorically stated that since the inhabitants of `Mauza Beshooni' are large in number, thus cannot be sued individually. An application under Order I, rule 8, C.P.C. for permission to sue them through their representatives was also filed along with list of said owners comprising of 136 persons.

2. On receipt of the file, the concerned Moharrir gave a detailed report specifically referring to the application under Order I, rule 8, C.P.C. and the list of owners, but the Judge of the trial Court seized of the said suit on the same day without caring for the said report of the Moharrir and/or having a look upon the plaint proceeded to order its registration in the relevant Register and issuance of summons to defendants for the next date. Thus, without attending to the provisions of Order I, rule 8, C.P.C., the suit was proceeded with and ultimately vide judgment and decree dated 25-4-2006, the same was decreed in favour of the plaintiffs-respondents and against the defendants-petitioners by Civil Judge, Buner.

3. Defendants-petitioners' Appeal No.22/13 of 2006 was dismissed by Additional District. Judge-I/Izafi Zilla Qazi, Buner on 8-3-2007, who too did not attend to the provisions of Order I, rule 8 and probably the same were not pressed into service by either side, as the judgments and grounds of appeal would reveal.

4. Ultimately, the judgments and decrees of the two Courts below were assailed by defendants-petitioners through this revision petition, which was admitted to full hearing on 7-11-2008.

5. Arguments in the case were heard on 18-1-2010 and judgment was reserved, but strangely, none of the two counsel representing either side attended to this important aspect of the matter and vehemently argued the case vis-a-vis its merits.

6. While going through the record of the trial Court, I came across the above facts as detailed in the opening part of this judgment. Along with the plaint, plaintiffs-respondents had not only filed an application under Order I, rule 8, C.P.C. for permission to sue the defendants-petitioners through their representatives, but had also appended a list of said persons who were intended to be sued through their representatives defendants-petitioners. The decree prayed for was also against all the persons and not against these six who were defendants in the suit "and now petitioners before this Court. Compliance with the provisions of Order I, rule 8, C.P.C. is mandatory and its non-compliance is an irregularity, which cannot be cured under section 99, C.P.C.

7. In these circumstances, the merits of the case as vehemently argued by both the learned counsel for the parties, cannot be appreciated and entered into. The remanded of the case, in the aforesaid circumstances, has become inevitable because the decree passed in favour of the plaintiffs-respondents though concurrent would be of no use to them as against the others who were intended to be sued through their representatives and whose list had been attached with the plaint by them.

8. It is really painful and harming that because of a casual approach by the Judge of the trial Court at the time of institution of the suit and then at the time of its disposal, the case is being remanded to the trial Court for trial afresh, thus resulting into sheer wastage of about nine precious years of the parties, their hard earned money and of the Courts. A free and independent judiciary cannot afford such a laxity and lapses on the part of the subordinate Courts and thus short comings of this and alike nature may in future be reported to/brought into the notice of honourable members of Administration Committee of the High Court for making necessary entries while recording their ACRs/PERs as well as otherwise assessing their conduct as a Judicial Officer.

9. Thus with the above observations, without entering into the merits of the case and on acceptance of this revision petition, the impugned judgments and decrees of the two Courts below are set aside. The case is remanded to the trial Court to proceed with it in accordance with law strictly following the provisions of Order I, rule 8, C.P.C. and decide it as early as possible but not later than six months from 15-3-2010, on which date the parties are directed to appear before the Senior Civil Judge, Buner at Daggar, who should try the case.

10. Office is directed to immediately send the record of the case along with copy of this judgment to the said Court. H.B.T./56/P Case remanded.