2007 PLP 1678 (MLD)

MIAN SAQIB NISAR, J.

The present petition i.e. C.R. No.1996 of 2006 as also C.R. No. 1997 of 2006, are being disposed of together, as both involve common questions of law, and facts.

2. In the two suits filed by the .petitioner, both against the respondents, the issues were framed and the plaints have been rejected by the learned Civil Judge through a consolidated order, dated 1-4-2006, on the premises that the suit property is not available for the transfer to the petitioner, because it stands transferred to one Mst. Arshad Tahira by the Colony Department, who further has sold the same in favour of Mst. Robina Aziz, respondent No.7 and thus the suits are rendered redundant; this consolidated order was challenged by the petitioner in two appeals, but without any success, which were dismissed on 30-9-2006. Hence these petitions.

3. The brief facts of the cases are that, the Municipal Corporation Faisalabad (MCF), had inducted the petitioner as a lessee into the possession of a piece of land, which though was owned by the estate, but was in possession of MCF; the lease was granted to the petitioner in the year, 1978, which was to expire in 1995 and the petitioner had established a free dispensary upon that land; however, a year before the expiry of the lease period, the MCF required the petitioner to vacate that land, because it was needed for the purpose of widening the road; that petitioner, therefore, was accommodated at the suit-land measuring 19 Marlas, where it re-established the free dispensary; the petitioner subsequently apprehending that this land may not be allotted to some other party, filed a suit for the declaration, permanent injunction, etc., in which, the petitioner sought the relief against interference in its possession and also for regularization of its lease;. some interim relief was granted to the petitioner in the matter, which was pending, when the petitioner learnt that the Colony Department has allotted the land to one Mst. Arshad Tahira, resultantly, another suit for the declaration and permanent injunction was filed, challenging the allotment of Mst. Arshad Tahira, which was made to her vide order, dated 5-9-2002, passed by the Secretary, Govt. of Punjab, Colonies Department. In this suit also the petitioner asked for the injunctive relief and status quo order was passed but during the pendency of the suit, the land was further transferred by Mst. Arshad Tahira in favour of Mst. Robina Aziz, respondent No.7, vide registered sale-deed, dated 23-5-2003. It may. be pertinent to state here that Mian Nasir Ali, husband of Mst. Robina Aziz had acted as an attorney for and on behalf of Mst. Arshad Tahira in seeking the allotment and he throughout was involved in the proceedings and the land was subsequently got transferred in the name of his wife Mst. Robina Aziz vide registered sale-deed, dated 23-5-2002; Mst. Robina Aziz, accordingly applied to the Court for the rejection of the plaints under Order VII Rule 11, C.P.C. and the Court taking into account that as the suit-land has been sold to Mst. Robina Aziz; has accepted the A applications and rejected the plaints under Order VII Rule 11, C.P.C.; the learned Court unfortunately did not keep in view that the sale ,was mad during the pendency of the suit and thus was hit by the rule of lis pendens and could not affect the original cause of action propounded by the petitioner in its suit. The appeals of the petitioners have also failed.

4. Learned counsel for the respondents when confronted with the above, states that the petitioner had earlier applied for the transfer of the land but its application has been rejected by the BOR for the reason that the land is not available as having been transferred.

5. It may be pertinent to state here that respondents/defendants Nos. 1, 2 and 4, were proceeded ex parte by the learned trial Court on 6-3-1998, however, with the mutual consent of learned counsel for the parties, such ex part proceedings against them are hereby set aside.

6. Heard. The transfer of the suit-land to Mst. Arshad Tahira, and thereafter in favour of Mst. Robina Aziz, were made during the pendency of the suits filed by the petitioner, which were consolidated and in which issues have already been framed, the plaints whereof could B not be rejected for non-disclosure of the cause of action, or that the suits had been rendered redundant because the property had been transferred in favour of Mst. Robina Aziz. May be in the changed circumstances, the petitioner could apply to the Court for making an appropriate amendment in the plaints, so as to sustain its suits, especially in the situation, when there was some injunctive order passed by the Court in the cases and according to the judgment reported as Bakhtwar, and others v. Amin and others (1980 SCMR 89) the Court under its inherent jurisdiction can bring back the party to a position; where it originally stood, as if the injunctive order has not been violated; resultantly, the orders passed by the Courts below are absolutely illegal, infirm and based upon erroneous exercise of the jurisdiction which cannot sustain and are hereby set aside. The petitions are allowed, the matters are remanded to the trial Court to decide the cases afresh after proceeding in accordance with law. Before parting it may be observed that if the petitioner is in possession of the suit property., its possession should not be disturbed; however parties are directed to appear before the trial Court on 25-5-2007; if the pleadings are complete and the issues are conclusively framed, the trial Court shall decide the cases within a period of six months without fail under intimation to this Court and no unnecessary adjournment shall be granted to either of the party. The respondents/ defendants, against whom the ex parte proceedings are set aside, are directed to file the written statement on the next date of hearing. S.A.K./C-12/L Case remanded.