1997 PLP 790 (MLD)

In respect of the disputed property the litigation between Muhammad Inayat petitioner on the one side as well as Khalid Hussain, Muhammad Riaz and Ijaz Ahmad respondents Nos.2 to 4 on the other side is pending in the Revenue Hierarchy. In respect of the disputed property the District Collector, Mandi Bahauddin directed the Assistant Commissioner, Mandi Bahauddin vide order, dated 29‑5‑1979 to initiate the ejectment proceedings. The matter was taken to the Commissioner, Rawalpindi Division, Rawalpindi in a revision petition who held the aforesaid order as premature as no final order was held to have been passed thereof. Thereafter the Assistant Commissioner, Mandi Bahauddin passed the order on 3‑7‑1979 under section 175 of the Land Revenue Act for the ejectment of the petitioner who filed Writ Petition No. 3884 of 1979 in this Court. The matter was remanded to the Additional Commissioner, Gujranwala Division, Gujranwala to be treated as Regular Appeal. The said appeal was dismissed on 15.‑1‑1994 by the said Additional Commissioner. The petitioner has filed R.O.R. No.547 of 1994 which is pending before the learned Member (Revenue), Board of Revenue. Punjab, Lahore. The revision petition is at the motion stage and vide order dated 7‑7‑1996 the same was fixed for 2‑9‑1996. The temporary injunction was issued in favour of the petitioner for the maintenance of status quo as to his possession on the disputed land through the suspension of the impugned order. However, respondents Nos.2 to 4 made an application on 11‑7‑1996 for early hearing wherein the notice was issued to the petitioner for 21‑7‑1996. Learned counsel for the petitioner was served through his clerk for this date. Sh. Muhammad Hanif, Advocate, a junior of the learned counsel for the petitioner, appeared on 21‑7‑1996. The relevant portion of order dated 21‑7‑1996 passed by the learned Member (Revenue), Board of Revenue, Punjab, Lahore is reproduced as under:‑‑ "The counsel for the respondents contended that in view of the concurrent orders of the two lower Courts there is no, justification for suspension of the impugned order. The counsel for the petitioner is not present despite service of notice. I see no justification to continue with the stay order granted in this revision petition which is vacated. To come up on 2‑9‑1996. Dated 21‑7‑1996 (Sd.) Member (Revenue), Board of Revenue, Punjab, Lahore. 2.The aforesaid order, dated 21‑7‑1996 has been assailed by the petitioner through the filing of this writ petition on the grounds that the revision petition is still pending before the Board of Revenue, Punjab, Lahore and that the temporary injunction was vacated on 21‑7‑1996 in the absence of the counsel for the petitioner when the arguments were not heard and the petition was disposed of even though the Assistant of the learned counsel for the petitioner appeared on 21‑7‑1996. The writ petition was admitted for regular hearing on 10‑9‑1996 which has been resisted by respondents Nos.2 to 4.

3. It is proper to express that as intimated by the learned counsel for the contesting parties the next date of hearing before the learned Member (Revenue), Board of Revenue, Punjab, Lahore is fixed for 15‑12‑1996.

4. I have heard the learned counsel for the contesting parties and gone through the record before me. The main contention of the learned counsel for the petitioner is that the arguments were not heard on 21‑7‑‑1996 and that even there was no justification to fix the short date as the matter was pending since long at the motion stage. He continued that the pendency of the revision petition before the Board of Revenue, Punjab, Lahore without stay order in favour of the petitioner would not bear any fruit as the adverse party has taken all the steps to eject the petitioner. According to him due to the pendency of the Civil Revision Petition which even if is at motion stage, the impugned order about the vacation 6f the stay order is illegal and the jurisdiction in the matter even though vested in the learned Member (Revenue), Board of Revenue, Punjab, Lahore has been exercised illegally. On the contrary learned counsel for respondents Nos.2 to 4 laid the emphasis that the revision petition is pending before the Board of Revenue, Punjab, Lahore since long which is at the motion stage and the adjournments were being procured by the petitioner without any legal justification. He added that the impugned order is neither illegal nor without jurisdiction. I have to express that if the dilatory tactics are being taken by the petitioner he can be controlled by granting the short adjournments. It has been brought to the notice of this Court by the learned counsel for the parties that the R.O.R. was filed during the year 1994 and long dates have been given for preliminary arguments. This is one aspect of the matter. The other aspect of the matter which has stolen the eminence is that the matter was fixed for 2‑9‑1996 and on the application of respondents Nos.2 to 4 the short date of 21‑7‑1996 was fixed. Even though the junior of learned counsel for the petitioner was present who was marked as such, the arguments were not heard. The impugned order, dated 21‑7‑1996 does not show that the Assistant of the learned counsel for the petitioner refused to argue the matter. It means that the petitioner was condemned unheard and thus the jurisdiction vested in the learned Member (Revenue), Board of Revenue, Punjab, Lahore was illegally exercised. I would be glossing over an important aspect of the matter by expressing that it has been commanded in the ruling published as E.A. Evans v. Muhammad Ashraf Law Notes 1968 SC 81 that where the appeal is admitted the appellant is entitled to the temporary injunction. Seeking guidance therefrom I have to express that due to the pendency of the revision petition it is fair and just to grant the temporary injunction to the petitioner otherwise the purpose of invoking the jurisdiction of the Board of Revenue, Punjab, Lahore would simply stand frustrated. In case the impugned order, dated 21‑7‑1996 passed by the learned Member (Revenue), Board of Revenue, Punjab, Lahore is affirmed the pendency of the revision petition before him would be simply an exercise in futility. The ejectment order passed against the petitioner is in the field and due to the pendency of the revision petition before the Board of Revenue, Punjab, Lahore it can safely be expressed that the petitioner is entitled to the temporary injunction prayed for till the matter at the motion stage is disposed of either way. As such the impugned order, dated 21‑7‑1996 is held to be illegal and non‑existent.

5. I, therefore, accept this writ petition, set aside the impugned order, dated 21‑7‑1996 and hold that the order about the suspension of the impugned order, dated 15‑1‑1994 passed by the Additional Commissioner, Gujranwala Division, Gujranwala shall hold the water/remain operative in the field till the revision petition is further processed with at the motion stage. However, it is made clear that the learned Member (Revenue), Board of Revenue, Punjab, Lahore shall not feel prejudiced by this judgment and may pass any order in favour of any party in accordance with law. In the circumstances the parties are left to bear their own costs. A.A./M‑209/L Revision accepted.