P L D 2013 Balochistan 52

 
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan
Kakar, JJ
 
REHMATULLAH and others---Petitioners
 
Versus
 
A. HAMEEDULLAH and others---Respondents
 
Civil Revisions Nos. 453 of 2007, 338 of 2008 and Constitutional Petitions
Nos.455, 538 of 2009, decided on 24th October, 2012.
 
(a) Civil Procedure Code (V of 1908)---
 
----S. 79---Specific Relief Act (I of 1877) Ss. 42 & 54---Suit by or against the
government or public officers in their official capacity---Non-
impleadment of government as party in such case---Effect---Suit for
declaration and permanent injunction contending inter alia that the
plaintiffs' forefathers were co-sharers in suit land; that they were
"lathband bazgards" of the Provincial Government over part of suit land
and sought to restrain defendants from interfering with their possession
of the suit land---Suit was decreed by Trial Court---Contention of the
defendants was that suit was not competent in terms of S.79, C.P.C. since
suit property was vested with the Provincial Government, which was not
impleaded by the plaintiffs as defendants in the suit---Validity---Perusal of
record revealed that suit property vested with the Provincial
Government and the defendants had raised such objection before the
Trial Court upon which an issue was framed---Findings of the Trial Court
on said issue were illegal and perverse as in a case where subject matter
of a suit was immovable property and the same vested with or was
claimed by the Government, in such like cases, Member Board of
Revenue through its Secretary was a necessary party---In case of non-
impleadment of the Government in the suit, the suit would be
incompetent and non-maintainable---High Court set aside the decree of
Trial Court and dismissed suit filed by the plaintiffs, with the observation
that plaintiffs were at liberty to file fresh suit subject to all just
exceptions---Revision was allowed, accordingly.
 
Government of Balochistan, CWPP & H Department and others v.
Nawabzada Mir Tariq Khan Magsi 2010 SCMR 115 rel.
 
(b) Contempt of Court Ordinance (V of 2003)---
 
----S. 12---Civil contempt---Contempt proceedings initiated on basis of a
decree which itself was a nullity, must be set aside.
 
(c) Contempt of Court Ordinance (V of 2003)---
 
----Ss. 5 & 12---Conviction for civil contempt recorded by Trial Court in the
light of a decree in a civil suit---Validity---Under S.5 of the Contempt of
Court Ordinance, 2003 only the High Court and the Supreme Court could
proceed with the matter and record conviction if the case of contempt
was made out---Trial Court, in the present case, should have made a
reference to the High Court after entertainment of the contempt
application but instead of adopting the legal course, the Trial court
proceeded with the matter and recorded conviction, which was a course
that was in utter disregard to the relevant law and the entire proceedings
were therefore, void ab inito and coram nonjudice.
 
Yasir Arfat v. Vice-Chancellor, Mehran University 2000 CLC 387 rel.
 
Adnan Ejaz for Petitioners (in Civil Revision No.453 of 2007).
 
Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in
Civil Revision No.453 of 2007).
 
Adnan Ejaz for Petitioners (in Civil Revision No.338 of 2008).
 
Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in
Civil Revision No.338 of 2008).
 
Adnan Ejaz for Petitioners (in Civil Revision No.455 of 2009).
 
Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in
Civil Revision No.455 of 2009).
 
Adnan Ejaz for Petitioners (in Civil Revision No.538 of 2009).
 
Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in
Civil Revision No.538 of 2009).
 
Date of hearing: 17th October, 2012.
 
JUDGMENT
 
MUHAMMAD NOOR MESKANZAI, J.---Through this common judgment
we propose to decide Constitutional Petitions Nos.455, 538 of 2009, Civil
Revision Petitions Nos. 453 of 2007 and 338 of 2008, as common question
of law and facts are involved therein.
 
 
Facts of Civil Revision No.453 of 2007.
 
2. Facts relevant for the disposal of instant petition are that the
respondents filed a suit for declaration and permanent injunction against
petitioners in the Court of Qazi Bori/Sanjavi at Loralai. It was averred in
the suit that the plaintiffs have landed property in Mouza 'Narai Dag'
Sub-Tehsil Sinjavi and since their forefathers they are share holders in
said land. It was further averred in the suit that plaintiffs are 'Lathband
Bazgars' of Government of Balochistan over land bearing Khasra No.1203
up to 1260. According to plaintiffs most of the share holders are
irrigating their lands through rainy water channel known as 'Wah' since
last 25 years. It was case of the plaintiffs that petitioners/ defendants are
interfering in the said water channel by way of stopping the water and
changing its direction towards their land.
 
3. The suit was contested by the defendants/petitioners by way of filing
written statement, whereby besides raising certain preliminary legal
objections, claim of plaintiffs/respondents was repudiated on merits.
 
4. The learned trial Court, out of the pleadings of parties framed
following issues:--
 
5. Thereafter the parties were directed to adduce evidence in support of
their respective claims. The plaintiffs produced two P.Ws. and got
recorded statement of their attorney. In rebuttal, the defendants
examined five D.Ws. and petitioner No.1 (for himself as well as attorney
for other defendants) entered in the witness box.
 
6. The learned trial Court after hearing the parties and evaluating the
evidence decreed the suit vide judgment and decree dated 12th June,
2007. The petitioners challenged the above referred judgment and decree
before the learned Majlis-e-Shoora, Loralai by way of filing appeal, which
too met with the same fate, hence instant revision petition.
 
Facts of Civil Revision No.338 of 2008
 
7. The respondents filed contempt application against petitioners on the
ground that in violation of judgment/decree dated 12th June, 2007 passed
by Qazi Sanjavi/Bori at Loralai, they plied tractor in the land rendering
themselves liable to be prosecuted under the Contempt of Court Act. The
petitioner No.2 filed his rejoinder to contempt application, however, rest
of the respondents in contempt application were proceeding against ex
parte.
 
8. The learned trial Court framed following point for determination:
 
9. The applicants (in contempt application) in support of the accusation
produced three A.Ws. and applicant No.2 himself appeared in the
witness box. Whereas, in rebuttal respondents examined R.W.1
Muhammad Shah, R.W.2 Zahir Shah, and respondent No.2 Syed Noor
entered in the witness box.
 
10. The learned Qazi vide order dated 31st May, 2008 came to the
conclusion that the decree has not been violated, as such, dismissed the
contempt application. The respondent No.1 feeling aggrieved of the
above referred order preferred an appeal before the Majlis-e-Shoora,
Loralai. The learned Majlis-e-Shoora vide order dated 24th September,
2008 accepted the appeal and set aside the order dated 31st May, 2008
passed by Qazi Bori/Sanjavi at Loralai and remanded the case to the trial
Court with direction to reconsider the evidence produced by the parties.
The parties be provided opportunity to lead further evidence if they
desire so, thereafter to decide the matter in accordance with law, hence,
instant revision petition.
 
Facts of C.Ps. Nos.455 and 538 of 2009
 
11. The case of the petitioners is that feeling aggrieved of the order dated
24th September, 2008 passed by the learned Majlis-e-Shoora, Loralai
whereby petitioner was/were found guilty of Contempt of Court Act and
sentenced them to five month, they filed Civil Revision Petition No.338 of
2008 accompanied by C.M.A. No.1353 of 2008 before this Court. This
Court vide order dated 21st November, 2008 was pleased to suspend the
impugned order passed by the Majlis-e-Shoora, Loralai. The order passed
by this Court was placed before learned Qazi Bori/Sanjavi, but the
learned Qazi did not take into consideration the order passed by this
Court and vide order dated 12th November, 2008 sentenced the
petitioners under Contempt of Court Ordinance for five months. The
petitioners assailed the latter order by way of filing appeal before the
learned Majlis-e-Shoora, Loralai. The learned Majlis-e-Shoora vide order
dated 30th December, 2008 dismissed the appeal filed by petitioners,
hence, instant Constitutional petitions.
 
12. Learned counsel for the petitioners contended with vehemence that
the learned trial Court as well as appellate Court committed material
irregularity in decreeing the suit and dismissing the appeal filed by the
petitioners. It was next contended that there was no material whatsoever
on record to justify the drawing of a decree. It was strenuously urged
that the suit was not competent as, in fact the property in question vests
in the Government and a specific plea to such effect was raised by
petitioners in their written statement. The learned trial Court though
framed issue No.1 in this regard, yet failed to dilate upon 'the issue with
reference to reasons based on law. Similarly, contempt proceedings
initiated by the trial Court followed by conviction are not sustainable for
want of jurisdiction. The trial Court was not competent to initiate
contempt-proceedings and the appellate Court failed to take legal notice
of this fact. The learned counsel for the petitioners prayed for acceptance
of Civil revisions and as well as Constitutional petitions.
 
On the other hand learned counsel for the respondents while
controverting the arguments so forwarded by the learned counsel for
petitioners vehemently opposed the submissions. Learned counsel for
the respondents submitted that the trial Court was quite competent to
proceed with the matter and similarly on violation of orders passed by
the trial Court the petitioners were liable to be prosecuted through the
process of contempt proceedings, as such were rightly sentenced.
 
13. We have considered the contentions so advanced by the learned
counsel for the parties and perused the available record. A conscious
application of judicial mind would lead to an irresistible conclusion that
the Civil Revision Petition No. 453 of 2007, must succeed on the sole
ground of incompetency of Civil Suit No.25 of 2006. Perusal of record
reflects that admittedly, the property in question vests in the
Government of Balochistan. For ready reference para No.2 of the plaint is
reproduced:--
 
Similarly, the respondents raised objection upon the maintainability of
suit on such ground and the trial Court framed issue No.1. For the sake of
convenience the same is reproduced:
 
14. No doubt; the trial Court dealt with this issue mechanically and, thus,
the findings so arrived at qua issue No.1 are absolutely illegal, perverse
and contrary to the norms of natural justice, this point itself is sufficient
enough to decide the fate of all four cases. During the course of
arguments when the learned counsel for the respondents/plaintiffs was
confronted with this legal aspect of the case, he tried to justify the
findings but failed to satisfy the Court and ultimately conceded that the
suit in present form was not competent. Even otherwise, the law on the
subject stands settled that in the case where the subject matter is
immoveable property and the same vests or is claimed by the
Government, in such like cases, the MBR through its Secretary is a
necessary party. In case of non-impleadment of the government in the
suit/proceeding as party, the suit so filed and the proceedings so carried
out are incompetent and non-maintainable. By holding the view, we are
fortified by the judgment reported in 2010 SCMR 115 (Government of
Balochistan, CWPP & H Department and others v. Nawabzada Mir Tariq
Khan Magsi relevant at page 119), wherein it has been held as under:--
 
"The above reproduced section has been couched in a simple and
plain language and there is hardly any need .for its scholarly
interpretation and it simply provides that a suit instituted against
Government, the authority to be named as defendant would be
Federal Government of Pakistan or Province concerned as the case
may be. No suit can be filed against Provincial Government
without impleading the Province as a party and the procedural
precondition is mandatory in nature and no relief can be sought
without its strict compliance and such suit would not be
maintainable."
 
In the light of above discussion, we feel no hesitation in holding that Civil
Suit No.25 of 2006 was incompetently filed, therefore, the judgment and
decree dated 12th June, 2007 passed by the learned Qazi Bori Sanjavi and
upheld by Majlis-e-Shoora are hereby set aside and the suit filed by the
plaintiffs/respondents is dismissed. However; the respondent/plaintiff is
at liberty to file a fresh suit subject to all just exceptions.
 
15. As discussed hereinabove, the judgment and decree referred to
herein above being nullity in the eye of law has been set aside. Similarly,
on the same analogy the contempt proceedings, which conceived
Constitutional Petitions Nos. 455, 538 of 2009 and Civil Revision No. 338
of 2008, being nullity must culminate in acceptance of petitions for a
variety of reasons. Firstly, the contempt proceedings were initiated on
the basis of a decree which itself was a nullity. Secondly, the Court of Qazi
was not competent to initiate the contempt proceedings which resulted
in conviction of petitioners. Learned Qazi has recorded conviction under
section 5 of Contempt of Court Ordinance, 2003 whereas under section 5,
the High Court and Supreme Court can proceed with the matter and
record conviction if case is made out. The Qazi was required to have had
made a reference to the High Court after entertainment of contempt
application but instead of adopting the legal course, the learned Qazi
himself proceeded with the matter and recorded the conviction. The
course adopted by the learned Qazi is in utter disregard and flagrant
violation of relevant law, therefore, the whole proceedings are ab initio
void. By holding the view we are fortified by the dictum laid down in the
judgment titled as Yasir Arfat v. Vice-Chancellor, Mehran University
reported in 2000 CLC page 387 (relevant at page 393). Relevant
observations therefrom are reproduced herein below:--
 
"It is manifestly clear from the provisions of section 3 and
subsection (4) of section 5 of Contempt of Court Act and section
228, P.P.C. that the Subordinate Courts could punish for contempt
of Court only where the contempt was committed in the face of the
Court or its orders were disobeyed or disrespected".
 
16. In the instant case neither the contempt was committed in the face of
the Court nor its orders were disobeyed or disrespected, therefore, we
are of the considered opinion that the entire proceedings conducted by
the trial Court under Contempt of Court Act were corum non judice.
 
Resultantly we accept all the petitions, set aside the order dated 12th
November, 2008 passed by learned Qazi Bori Sanjavi, in contempt
proceedings and quash the whole proceedings conducted by the lower
forums. The contempt application filed by the respondents/applicants is
hereby dismissed.
 
KMZ/104/Bal. Order accordingl
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