2012 PLP 202 (CLC)

MUHAMMAD NOOR MESKANZAI, J.

Instant appeal is directed against the order/decree dated 17-12-2004 passed by learned Civil Judge, Chaman, whereby the suit filed by appellants for declaration, injunction, possession and recovery of money was dismissed.

2. Precise facts are that the appellants instituted a suit for Declaration, Injunction, Possession and recovery of money against respondents in the Court of Civil Judge, Chaman. It was averred in the plaint, that M/s Diocesan Trust is successor of church Missionary Trust Association Limited and owners of trust properties throughout Pakistan. Appellants Nos.2 and 3 are members of Christian community. There is a Church and elite buildings constructed upon Khasra No.1623 bearing Khatooni No.105 measuring 24080 sq.ft situated in Bazar Chaman, Tehsil Chaman. It was further averred in the plaint that appellant No. 1 is the owner of lands and superstructure of Khasra No.1623 Khatooni No.105 measuring 24080 sq.ft of the properties situated in Bazar Chaman, Tehsil Chaman. The respondents Nos.1 to 6 occupied the said premises forcibly and raised illegal construction of 10 shops being occupied by the respondents Nos.7 to 10 illegally and unlawfully. The respondents Nos.1 to 6 are also maintaining the accounts in the name of church Society in Muslim Commercial Bank Chaman, which is trust money. The respondents are posing themselves to be the owner of said property and are restraining the people from performing their religious rites/activities. They are changing the nature of the properties by raising construction. Lastly the appellant claimed entitlement to receive the rent amount so deposited in Muslim Commercial Bank, Chaman.

3. The respondents Nos.1 to 5 and 8, 10 and 11 contested the suit filed by appellants by way of filing joint written statement, however, rest of the respondents did not contest the suit. It may not be irrelevant to mention here that respondent Muslim Commercial Bank Chaman was deleted from the list of defendants on 12-4-2003 whereupon amended suit as well as amended written statement were filed.

4. Out of the pleadings of parties the learned trial Court framed following issues. (i) Whether the suit of plaintiffs is not maintainable in view of the preliminary objection A, D, E and H raised by defendants in their written statement? OPD (ii) Whether the defendants Nos.1 to 6 have no authority to raise construction or lease out the property? OPP. (iii) Whether the defendants have no lawful authority to refrain the plaintiffs to perform religious rites? OPP (iv) Whether the plaintiffs are entitled a decree as prayed for? (v) Relief? Thereafter the parties were directed to adduce evidence in support of their respective claims. The plaintiffs/appellants produced four witnesses. Whereafter the appellants submitted an application under section 151, C.P.C. for producing documents through plaintiffs on 23-9-2004. The defendants filed rejoinder to the application. However, the learned trial Court after hearing arguments on application vide order dated 17-12-2004 dismissed the suit on the ground of non-appearance. The appellants feeling aggrieved and dissatisfied of the above referred order have preferred instant appeal challenging the same. We have heard Miss Tehmeena Samad, Advocate for appellants whereas Mr. H. Shakeel Ahmed, Advocate represented the respondent and Mr. Abdul Aziz Khilji, Addl: A.-G. appeared on Court notice. Learned counsel for appellants argued with great vehemence that the learned trial Court ought to have decided the matter on its own merit but this aspect of the case escaped notice of lower Court. He further argued that no proper opportunity was afforded to the appellants to prove their case and the matter was decided in a very slipshod/haste manner. The impugned order/decree is against the provisions of Order XX, Rule 5, C.P.C. The learned trial Court was under legal obligation to record its findings on the basis of material available on record and to decide each and every issue. She stressed that so far non-appearance of counsel for appellant is concerned; they could not reach in time due to blocked of road. Lastly it was prayed that order/decree impugned herein may be set aside and case be remanded to the trial Court for deciding the same on its own merits. Mr. H. Shakeel Ahmed Advocate for respondents opposed the contention put forth by learned counsel for appellant and submitted that appellant failed to pursue their case. The appellants were not interested in prosecution of their case and thus the trial Court has rightly dismissed the suit. We have considered the contentions advanced by learned counsel for parties and perused the record. Perusal of record reflects that after framing issues the appellant produced four P.Ws. and their statements are available on record. However; the appellant in order to file certain documents moved an application seeking permission of the Court for production of said documents through the plaintiff while appearing in the witness box. Rejoinder to such application was filed on 19-2-2004 and the case was fixed for 18-11-2004 for arguments on such application. On 18-11-2004 none appeared for plaintiffs and the learned Presiding Officer was on leave. The case was adjourned for 17-12-2004. It may be noted here that the date 17-12-2004 appears to have been interpolated and there is no signature upon such overwriting. On 17-12-2004 the trial Court dismissed the suit. It is painful to note that the learned trial Court under misconception dismissed the suit and the nature of the proceedings were misunderstood. Admittedly it was the application which was to be decided. At the best, on 17-12-2004 the trial Court could have dismissed the application instead of suit because the suit was not fixed for hearing. The learned trial Court instead of deciding or dismissing the application has dismissed the suit for want of interest while pressing into service the provisions of Order XVII, Rule 3, C.P.C. In our considered opinion, neither the suit could have been dismissed by pressing into service Order-IX, Rule-8 nor for that matter the suit could have been dismissed under Order-XVII, Rule-3, C.P.C. On 17-12-2004 the application filed by the appellants/plaintiffs was liable to have been considered. Similarly the provisions of Order XVII, Rule-3, C.P.C. could not be pressed into service in the manner as attracted by the trial Court. Plaintiffs have produced four witnesses and their statements were available on record. While pressing into service provisions of Order XVII, Rule (3), C.P.C. the Court is required to decide the case on the basis of material available on record. The order impugned neither fulfils the requirements of Order IX, Rule 8, C.P.C. nor falls under Order-XVII, Rule-3, C.P.C., hence we have no hesitation in our mind in holding that the impugned order and decree are illegal, unwarranted, unjustified and void ab initio. Resultantly we accept the appeal. Set aside the impugned order and decree dated 17-12-2004 passed by Civil Judge, Chaman and remand the case to the trial Court with the direction to dispose of the application and thereafter to proceed with the suit. Since sufficient time has already been lapsed, therefore, it will be in the interest of justice to direct the trial Court to conclude the proceedings preferably within a period of four months by providing ample opportunity to both the parties to lead their respective evidence. Decree sheet be drawn. S.A.K./127/Q Case remanded.