2007 PLP 3141 (YLR)

MIAN MUHAMMAD NAJAM UZ-ZAMAN, J.

Ch. Muhammad Azam and Co. sole proprietor and lessee of the Government of Punjab filed a complaint under section 3 of the Illegal Dispossession Act, 2005 against Resham Khan son of Muhammad Din and Muhammad Mushtaq son of Ali Hussain on the allegation that they had illegally dispossessed him from his shops (detail of the same find mentioned in the complaint which is available on the record of this case). Trial Court vide order dated 20-6-2006 while exercising jurisdiction under section 7 of the ibid Act directed Resham Khan to deliver the possession of the shop to Ch. Muhammad Azam (complainant) and adjourned the matter for further proceedings. The said order was assailed through a constitutional petition (W.P 6884 of 2006) before this Court, which was dismissed vide order dated 27-6-2006 and the Intra-Court Appeal (I.C.A. No. 204 of .2006) against the said order was disposed of vide order dated 6-7-2006 with the observations that trial Court while. deciding the main complaint will not be influenced by the observations made by the learned Single Judge in Chambers. Thereafter Resham Khan moved application before the trial Court for the dismissal of the complaint in view of the judgment of Full Bench. in case titled Zahoor Ahmad and others v. The State and 3 others (PLD 2007 Lahore 231)." Trial Court after hearing the parties and while keeping in view the. circumstances of the case vide order dated 12-2-2007 dismissed the complaint but with regard- to .the restoration of possession of property in dispute in favour of Resham Khan observed that since the .High, Court has upheld the order of the trial Court in .this regard, the possession of the disputed property cannot be restored in favour of Resham Khan. The said judgment of the trial Court has been assailed by Resham Khan through W.P. No.2669/2007 and by Ch. Muhammad Azam through W.P. No.4121 of 2007.. Both these matters are being disposed of together by the order.

2. Learned' counsel. representing Resham Khan submits that since the complaint has been dismissed being not maintainable in view of the judgment delivered by Full Bench of this Court in case titled Zahoor Ahmad and others v. The State and 3 others (PLD 2007 Lahore 231) order dated 22-6-2006 could, not sustain because the said" order was passed by a forum which had no jurisdiction to adjudicate upon the matter and thus this order is nullity in the eye of law.

3. On the other hand learned counsel representing Ch. Muhammad Azam (complainant) has advanced .lengthy arguments giving background of the case and finally submits that since the petitioner has been deprived, of his valuable property, the discretionary jurisdiction of this Court may not be extended in favour of usurper/respondent. Case of Ch. Muhammad Azam petitioner is that he is owner of the shops in dispute which were on lease with Muhammad Mushtaq who after expiry of lease period. handed over the possession of the same to him (Ch. Muhammad Azam) 1 but on 11-3-2006 Resham Khan who is a member of Qabza. Group by show of force took over the possession, of the said shops and thus he is liable to be tried and convicted for the offence find mentioned in the Illegal Dispossession Act 2005. On the other hands learned counsel representing Reham Khan etc. submits that petitioner never took the possession of the property in dispute as find mentioned in the complaint and that said complaint was filed with mala fide intention in order to deprive him (petitioner) of his valuable property. The perusal of the record reveals that before filing of said complaint the shops in dispute had remained subject-matter of civil suit i.e. suit for permanent injunction, filed by Muhammad Mushtaq and stay was also granted by the trial Court vide order dated 14-1-2006. The said suit was dismissed on 21-2-2006 for non-prosecution. Thereafter Resham Khan filed another civil suit for permanent injunction qua the same property and the' Civil Court on 21-2-2006 granted .stay in his favour. This suit was still pending when the said complaint under the Illegal Dispossession Act was filed by Ch. Muhammad Azam. The data available on record reveals that the said suit was dismissed by the Court on 27-7-2006. I have also observed that before filing the said complaint Ch. Muhammad Azam had also filed an ejectment petition on 31-2-2006 qua the eviction of Muhammad Mushtaq etc. from the' shop in dispute and .this matter was finally disposed of vide order dated 7-9-2006 (when the complaint under the-ibid Act was pending before the trial Court). I have also observed that though in the complaint filed by Ch. Muhammad Azam .specific allegation has been levelled against Resham Khan that he is a member of Qabza Group but counsel C for Ch. Muhammad Azam complainant is not in a position to show any data from the record of this case that Resham had remained involved in such-like activities. The said backdrop of the matter is indicative of the tact that limitations fixed by the Full Bench in Zahoor's case (supra) qua the application of provisions of Illegal Dispossession Act, 2005 are fully attracted .and thus the.. trial Court has rightly held that complaint is not competent. In this view of the matter I see no illegality in the impugned order qua the dismissal of complaint. Since the proceedings before the trial Court in the form of private complaint under section 3 of Illegal Dispossession Act, 2005 were not competent any order passed during the proceedings was null and void. Though the order of trial Court dated 22-6-2006 where by possession of the disputed shops were ordered to be handed over to Ch. Muhammad Azam was upheld by this Court while dismissing W.P.6884 of 2006 vide order dated 27-6-2006 but since this order was passed before the judgment of the. Full Bench this order cannot hold the field any more and accordingly, it is held that order passed, by the trial Court dated 22-6-2006 is no more sustainable. Accordingly, to that extent the impugned order is rectified with the direction that possession of the shops will be handed over to Resham Khan petitioner in W.P No.2669 of 2007. With this observation bath .these writ petitions stand disposed of. Parties are left to bear their own costs. H.B/T./M-343/L Order accordingly.