P L D 2009 Lahore 67 (PLP)

SYED ASGHAR HAIDER, J.

Through the instant petition, the petitioner has challenged the legality or otherwise of an executive order passed by the respondent No.4 on 3-9-2008 holding that the inquiry conducted by the Civil Judge respondent No.3, qua the tampering of record on the application submitted by the legal heirs of Mst. Nigar Bibi has no substance and was accordingly dismissed. The report thereafter was forwarded to the learned District Judge, Lahore who concurred with the inquiry report and observed that no further action is required in the matter. The petitioners are aggrieved of the inquiry report, as well as the order passed by the respondent No.4, hence this petition.

2. The learned counsel for the petitioners contended that deliberate and pre-meditated tampering of record took place qua the application made by Mst. Nigar Bibi made to Secretary Improvement Trust dated 5-6-1921, as the date of this application was tampered (copy of the application is attached as Annexure-B to this writ petition). He further submitted that the record pertaining to litigation inter se the parties pending adjudication in this Court in C.R. No.1959/1998 was ordered to be sealed by this Court in presence of the learned counsel for the parties and the Assistant Director L.D.A. Later the seal of the record was broken/tampered thus matter required determination of the delinquent persons. A judicial order should have been passed in the matter rather than an executive order by the learned District Judge Lahore, as there is ambiguity in this context the District Judge was required to refer the matter to this Court under section 113 in the form of Reference for opinion, no. other ground was urged, thus a direction be issued to the District Judge Lahore to file a reference for opinion of this Court.

3. Heard.

4. The inquiry referred to was conducted on the direction of the District Judge, Lahore. Evidence was recorded in detail and all the aspects in the matter were adverted to, the envelope which was sealed by this Court was desealed and torn but after examining the contents was re-sealed again in presence of parties, no complaint or application or objection was raised by the contenders at the relevant time. From the contents of the inquiry report it is clear that Mst. Nigar Bibi or her successors could not prove that any tampering was committed by the Court officials or the respondents. Further tampering, if any, even according to the petitioner is limited to the date of application and nothing beyond, which has caused no prejudice to the respondents. In this view of the matter, the proceedings were filed. Inquiry proceedings were based on an executive order of the District Judge, Lahore, no judicial determination in this context was required, therefore, the executive order passed by the District and Sessions Judge is in consonance with sound legal principles. As far as the contention of the learned counsel for the petitioners is concerned that the reference should have been made by the District and Sessions Judge Lahore to this Court for opinion, it is misconceived. Reference can be made only by or on the asking of a subordinate Court, if it entertains a reasonable doubt qua pure question of law, it too is limited to suits in which no appeal lies, appeals and execution proceedings. The contestants no doubt can make an application in this regard to the concerned Court praying for a reference but discretion in this context is only with the Court and the parties cannot thus venture into this arena. Section 113, C.P.C. is clear and unambiguous in this context. In the present matter the District Judge entertained, no doubt, in the law applicable on the subject and therefore, he was under no obligation to refer the matter for opinion in form of a reference to this Court. The contention of the learned counsel therefore, has no force and is accordingly repelled. Reference (AIR 1928 Allahabad 371). This petition has, therefore, no merits and is dismissed. M.B.A./N-56/L Petition dismissed.