P L D 2022 High Court (AJ&K) 57 (PLP)

SYED SHAHID BAHAR, J.

The captioned appeal has been filed by the appellants against the decision of learned District Judge Bagh dated 05.04.2021, through which order/decision passed by the learned Civil Judge Bagh dated 25.01.2021 was reversed and an interim injunction was granted for a period of one year.

2. Both the parties have submitted written arguments. I have minutely perused the documents and record of the learned trial Court.

3. Facts in brevity:- Gist of the facts that culminated into filing the instant appeal are articulated as under:--

4. Plaintiffs/respondents, herein, by instituting the suit for declaration and perpetual injunction before the learned Civil Judge Bagh had taken the stance that the suit land measuring 6 kanal comprising khasra No.1363 situated in Village Rawali Tehisl Hari Ghel is owned by them and defendants/appellants, herein, have nothing to do with the same. The defendants/appellants, herein, are forcibly trying to occupy the suit land and are inclined to raise construction upon the suit land, therefore, an irreparable loss is likely to be caused to them.

5. In juxtaposition, the defendants/appellants, herein, submitted detailed written statement by giving certain preliminary objections as well, wherein they have categorically refuted the stance of the plaintiffs and have specifically alleged that the respondents have no locus-standi and the parties are co-sharers while the rest of the co-sharers have not been arrayed as party, hence, the suit is not maintainable on this sole ground inter-alia.

6. After perusal of the record of the learned trial Court, it reflects from the written statement offered by the appellants herein, that the contesting parties are admittedly co-sharers and the instant suit ex-facie seems to be a counterblast of the partition application previously filed by the appellant No.1, for partition of the suit land. Verbatim of para No.2 of the written statement is reproduced as under:--

7. The defendants/appellants, herein, also appended with the written statement facsimile of the documentary evidence and revenue record which ex-facie clarifies the factum that both the parties are inter-se co-sharers, that too, construction of Mosque over the suit land is also corroborated by the copy of the revenue record (a copy of Khasragardawari).

8. Raja Zaigham Iftikhar, the learned counsel for appellants vehemently reiterated and contended that the order passed by the learned Civil Judge dated 25.01.2021 was completely in accordance with the scheme of law and scale of justice. The trial Court after going through all the relevant record and contents of the plaint by taking into consideration the settled principle of law had rightly rejected the application of the plaintiffs/respondents, and denied the prayed relief, he added. While in juxtaposition, the learned District Judge Bagh erred in law by reversing the order of the learned trial Court and allowing the application for ad-interim injunction.

9. Sardar Azam Haider, the learned counsel for respondents staunchly defended the decision rendered by the learned District Judge Bagh and contended that the order/decision passed by the learned District Judge Bagh is perfectly legal which merits no interference at all.

10. Leaving aside the scope of appeal on merits avoiding further rhetoric and futile exercises, as I have observed and made a query to the learned counsel for the appellants regarding maintainability of the appeal and its competency but he confidently contended and reiterated that the appeal is competent and perfectly filed. Therefore, at the outset, I take up the matter of competency of appeal against the interlocutory order and resolve the same. Proposition is narrow. It is unequivocally reflecting from bare perusal of section 104(1)(i) of the C.P.C. read with Order VIII, Rule-105, Order XLIII, Rule 1(b) Order XLIII, Rule 1 that second appeal under section 100 of from an order passed in appeal is not competent. This view takes breath from the Codal Scheme itself having got endorsed by the Supreme Court in plethora of judgments (Horizontal precedents relied):--

1. PLD 1970 AJ&K 21, the case titled Abdul Qudoos v. Abdul Rehman; 2. 2010 YLR 2596, the case titled Abdul Karim v. Sultan Buksh;

3. AIR 1994 (Calcatta) 205;

4. PLD 2021 Lahore 168, the case titled Mohammad Saif-Ullah v. LDA.(Horizontal precedent) At this juncture no eventuality is left to entertain the instant appeal or to embark upon the findings of the Court below. Appeal, review and revision are substantive and statutory remedies provided by law. Although we are sanguine to the well settled doctrine of Ex-Debito-Justitiae entrenched and engrained in the legal system but each case has to be decided in its peculiar circumstances, therefore, while applying this doctrine, the conduct of the parties is relevant. The Doctrine of Ex-Debito Justitiae (Latin) meant for "As a matter of right or what a person is entitled to as of right".

11. Thus maxim applies to the remedies that the Court is bound to give when they are claimed apart from those that it has discretion to grant. The power of Court to Act Ex-Debitio Justitiae is an inherent power of Court to fix the procedural errors if arising from Courts own omission or oversight. It was held in Mohammad Salman v. Naveed Anjum [2021 SCMR 1675] that the power to convert and or treat one kind of proceedings into another is derived from the aforesaid doctrine, but in my estimation it is not a fit case to exercise the jurisdiction quo converting the appeal as revision or writ as the appellant has not pleaded so, neither he prayed for converting the lis but in juxtaposition the appellants insisted and maintained that appeal is competent. Be that as it may let the fate of the case to follow the pleaded and prayed stance. The crux of above discussion is that the instant appeal is not competent and maintainable, thus, devoid of any force and is hereby dismissed. The parties are left to bear their own costs. ZH/26/HC(AJ&K) Appeal dismisse