2015 PLP 393 (CLC)

M. TABASSUM AFTAB ALVI, J.

The supra titled appeal has been directed against the impugned judgment and decree dated 9-7-2012, passed by the learned District Judge Bagh, whereby judgment and decree dated 25-8-2011, recorded by Senior Civil Judge Bagh were maintained.

2. The precise facts culminating into filing of the instant appeal are that respondent-plaintiff filed a suit for declaration-cum-perpetual injunction before Senior Civil Judge Bagh, on 15-9-2009. It was claimed that and comprising Survey No.2135 measuring 43 kanals 15 marla situated in village Nar Shair Ali Khan, was Shamilat-deh land, out of which 03 kanals land was under his possession since 1986. It was stated that upon the aforesaid land, respondent-plaintiff, made improvements and also constructed a shop and a hotel. Through the above suit plaintiff solicited declaration that he was owner in possession to the extent of 3 kanals land and appellants-defendants threaten to dispossess him hence , he, further craved for decree of perpetual injunction restraining defendants not to disturb his peaceful possession. The suit was resisted by defendants-appellants through written statement, wherein it was admitted that land in dispute was Shamilat-deh. It was, however, stated that possession of respondent-plaintiff was unlawful. The learned Trial Court on the basis of pleadings of the parties framed 6 issues on 30-12-2010, After recording evidence of both the parties and hearing, the suit filed by respondent-plaintiff was decreed to the extent of 8 marlas land vide judgment and decree dated 25-8-2011. Feeling dissatisfied from the aforesaid judgment and decree, appellants-defendants, filed an appeal before District Judge Bagh, on 23-11-2011, which after hearing was dismissed vide impugned judgment and decree dated 9-7-2012. Mt appellants-defendants feeling aggrieved from the aforesaid judgments and decrees have filed the instant second regular appeal.

3. Raja Amjad Ali Khan, the learned counsel for appellants argued that the learned District Judge failed to decide the case on merit and appeal was dismissed on Solitary ground of non-filing sanction from Minister Incharge of Law Department, hence, by accepting appeal, the Court below be directed to decide case on merit. The learned counsel, however, admitted that for filing first appeal, no sanction was obtained by appellants from the Minister Incharge of Law Department.

4. Sardar Azam. Haider, Advocate, appearing on behalf of respondent-plaintiff, strenuously argued that appeal filed by appellants-defendants was hit by rule 29 of Law Manual, 1984, therefore, no illegality was committed by the first appellate Court while dismissing their appeal. He further argued that even on merit appellants have got no case, as plaintiff was granted decree for Shamilat-deh, where he constructed a shop and a hotel as Hasb-e-Rasad Khiwit to the extent of 8 marlas land as per law, that too subject to partition of Revenue Court and submitted for dismissal of appeal.

5. After hearing the learned counsel for parties, I have perused the contents of appeal and examined the record.

6. Admittedly appellants-defendants filed an appeal against judgment and decree of Trial Court dated 15-8-2011 before first appellate Court without obtaining sanction from the Minister Incharge of Law Department. As per rule 29 of the Azad Jammu and Kashmir Law Department Manual, 1984, the sanction was mandatory before filing an appeal in the Court below. The aforesaid rule is reproduced as under:

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29. Sanction in suits by or on behalf of the State and Public Officers. No suit on behalf of the State or a public officer as such shall be instituted without the sanction of the Minister Incharge of the Law Department. Provided that in case of urgency, the Law Department may, subject to the approval of the Minister Incharge of the Law Department institute any suit or appear on behalf of the State or a public officer. Provided further that in the absence of Minister Law, who has been delegated with the powers of granting approval for filing appeals, review and revisions etc., the Secretary Law shall stand delegated with the same powers under rules 17 and 29 of the Law Department Manual." A bare reading of the aforesaid provisions of law make abundantly clear that no lis on behalf of the State a Public officer shall be instituted without Sanction of Minister Incharge of Law Department. Even in case of urgency sanction from the Law Department, subject to approval of the Minister Incharge, was mandatory. The second proviso also clarified that in absence of Minister Law, the Secretary Law shall stand delegated with the same powers. However, in the instant case neither sanction from Minister Incharge nor from Law Department was obtained, hence, appeal of appellants in the first appellate Court was accordingly bad in taw.

7. The learned counsel for appellants, admitted that sanction under the aforesaid rule was not obtained, however, his submission was that case should have been decided on merit, therefore, the same may be remanded to the First Court for disposal, which submission misconceived, hence, repelled. As appeal filed by appellants was incompetent, therefore, question of its disposal on merit was not arisen. The same point came under consideration 'fore he apex Court in case titled Ch. Muhammad Yasin v. Sardar Muhammad Naeem Khan and 3 others [2010 SCR 17]. At page 33 of the report was opined as under:

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22. According to the respondents they have been aggrieved by the appointment of petitioner as Advisor because when he will exercise the powers, then their schemes will be affected and their other official works will also suffer. This version reveals that they filed writ petitions in their official capacity as Ministers and they want that their official business and the powers vested in them should not be jeopardized. According to rules 29 and 35 of the Law Department Manual no such kind of writ petition can be filed without the sanction of Government. Both the writ petitions have been filed without the sanction of Government, therefore, prima facie at this stage it seems that these writ petitions were not maintainable as these have been filed without the sanction of Government. This view finds support from the cases reported as Raja Nasim and 2 others v. Ehtesab Bureau, Azad Jammu and Kashmir [2004 YLR 2292] and Ehtesab Bureau, Azad Jammu and Kashmir v. Ch. Muhammad Hanif [2004 YLR 2278].

8. As appeal filed by appellants before the first appellate Court was admittedly without sanction of Minister Incharge, therefore, no illegality was committed the learned District Judge, while dismissing appeal on the supra sole legal ground.

9. For the reason enlisted above, finding no substance in the instant appeal, the same is hereby dismissed. The costs shall follow the eventualities. AG/73/HC(AJ&K) Appeal dismissed.