2010 PLP 1861 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Briefly the facts of the case are that respondents filed a suit in representative capacity claiming that property described in para. Nos.3, 4 and 5 of the plaint was in possession and ownership of one Jalal son of Sahb Zada. He gifted the said land for mosque through Mutation No.585 dated 13-3-1944. After two years of the gift, the people of the village constructed a well, one room and boundary wall of the mosque. It was averred in the plaint that defendants/petitioners illegally and without any authority intend to demolish the construction made for the public welfare and want to take forcible possession of the same. The defendant filed written statement, but subsequently he failed to appear and as such was proceeded ex parte, the learned trial court recorded ex parte evidence and decreed the suit vide judgment and decree dated 18-5-2001. The petitioner filed an appeal which too was dismissed on 1-11-2002.

2. Learned counsel for the petitioners submits that it was a representative suit, no permission of Court was obtained under Order 1 Rule 8 of the Code of Civil Procedure. He submits that a suit in representative capacity cannot proceed without the specific permission of the Court and the record shows that no permission was ever granted by the Court before proceeding with the same.

3. The learned A.A.-G submits that the judgments and decrees of Courts below are in accordance with law.

4. The learned counsel for the petitioner has referred order dated 23-2-2000 which is read as under:

5. He submits that no report of "Mushtari Munadi" is available on record and the learned trial Court has passed the order without the report of "Mushtari Munadi". No notice was issued to the public at large nor any proclamation was published in any daily newspaper. Order dated 27-1-2000 shows that court passed an order for conducting "Mushtari Munadi" at site directed to submit report, but no such report is available on record. The learned A.A.G submits that the report of Process Server or the person who conducted beating of drum is a formality and the order of the Court is sufficient in this behalf. Learned counsel for the petitioner submits that under Order I, Rule 8, C.P.C. in case of representative suit a separate application is required to be filed for obtaining permission of the Court and a notice must be given to the parties sought to be represented in the suit. He relied on Datari Construction Co. (Pvt.) Ltd. v. A. Razak Adamjee and others (1995 CLC 846), Munir Ahmed Khan v. Samiullah Khan and 7 others (1986 CLC 2652) and M. Saadullah and 28 others v. Tahir Ali and 2 others (1986 CLC 2643). Learned A.A.G submits that the land is under the use of mosque and is in the welfare of "Ahl-e-Islam" who are residing in the village and as such if there is any defect in the proceedings that can be condoned but the claim of the petitioner is that the land was never gifted for the mosque and it is his personal property and claimed that the property is in his possession since long and the suit has been filed only to harass the petitioner.

6. No doubt the respondents/plaintiffs have no personal interest in the property subject-matter of the suit but equally it is important that if the petitioner is owner of the suit-land and the same is in his possession it is necessary that he should be heard and his permission will be required for construction of a mosque on his land, so, it is in the interest of both the parties that the learned trial Court decide the case after hearing the parties and recording the evidence.

7. As no permission was obtained by the respondents for institution of the suit in representative capacity nor any report is available on the file about the beating of drum and other mode of service on public at large and as such set aside the judgments of both courts below and remand the case to the learned Civil Court for deciding the suit afresh after allowing proper application in terms of Order I, Rule 8, C.P.C., c the learned trial Court will issue proclamation in a local newspaper inviting objections and then will decide the suit. It is also directed that if the mosque is available on the disputed site that will not be demolished or taken into possession by the petitioner. As it is an old case it is desirable that the learned trial Court will decide this case within four months on receipt of this orders. M.U.Y./M-330/L Order accordingly.