P L D 2008 Lahore 392 (PLP)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel filed this writ petition to call in question order of the learned Addl. Sessions Judge, Jaranwala dated 29-5-2007.

2. The petitioner had filed a complaint under section 3 of the Illegal Dispossession Act, 2005 (hereinafter referred to Act) before the learned Addl. Sessions Judge, Jaranwala, however, the same was dismissed by the learned Addl. Sessions Judge by the impugned order dated 29-5-2007. The learned Addl. Sessions Judge concluded his brief order in following words:-- "The parties are related to each other. A civil suit is also pending in the Civil Court. In view of the law laid down in PLD 2007 Lahore 231, the instant complaint is not maintainable and the same is accordingly dismissed. File be consigned to the record room."

3. According to the learned counsel for the respondent the instant case is a case of partition of property and relates to jurisdiction of Civil Court. Similarly, main reason of dismissal of the complaint given by the learned Addl. Sessions Judge was pendency of the civil suit.

4. According to the Full Bench Judgment of this Court reported as Zahoor Ahmad and 5 others v. The State and 3 others (PLD 2007 Lahore 231) referred to and relied upon by the learned Addl. Sessions Judge, pendency of dispute before the Court or Revenue Court bars the jurisdiction if the suit was pending at the time of filing the complaint under section 3 of the Act, 2005. To illustrate and explain the above position the relevant portion of the Full Bench Judgment is reproduced as under:- "A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue Court." The record shows that when the complaint under the Act of 2005 was entertained, suit was not pending in a civil Court etc. The complaint was filed before the learned Addl. Sessions Judge on 30-10-2006, whereas the suit was filed on 13-1-2007. Therefore, it cannot be said that the suit was pending at the time of entertainment of the complaint. Likewise, the order of the Full Bench does not exclude individuals from the jurisdiction under section 3 of the Act of 2005. In para. 7 of the Full Bench Judgment it is clearly held that a complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with the illegal dispossession from immovable property or a complaint demonstrates an organized or calculated effort by some person operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim. In the case of an individual it must be the manner of execution of his design which may expose him as a property grabber. This aspect of the law has been further clarified by the Honourable Supreme Court of Pakistan in Rahim Tahir v. Ahmed Jan and 2 others (PLD 2007 SC 12.3). According to the above judgment, the law is fully applicable in cases of an individual who illegally takes over property of a lawful owner. According to the Honourable Supreme Court of Pakistan the objective of the Act, 2005 is, to protect the property of lawful owners/occupants form illegal/unauthorized occupants across the board. The exact wording of the Honourable Supreme Court of Pakistan is as under: "The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum." 4(sic) I have already discussed in the preceding paras. that when the application under section 3 of the Act, 2005 was filed the matter relating to the disputed property was not pending before any other forum and no distinction can be made in this case whether the accused/respondent belongs to a group or is an individual. Likewise, even if a relative takes possession of a property through illegal and unauthorized means from a lawful owner, the provisions of the Illegal Dispossession Act 2005 would be attracted.

5. Thus in view of the above discussion, this writ petition is allowed. The impugned order dated 29-5-2007 is set aside. The complaint filed by the petitioner shall be deemed as pending before the learned Addl. Sessions Judge, Jaranwala, who will decide the, same expeditiously as already sufficient time has been consumed by the pending litigation. In this regard the learned Addl. Sessions Judge is directed to seek guidance from (PLD 2007 SC 423). M.B.A./W-7/L Petition allowed.