Civil Procedure Code (V of 1908)---
----S. 36, O.XXXIX, Rr. 1 &2, O.XL R. 1---Constitution of Pakistan, Art.199---Constitutional Petition---Execution of interlocutory order, when main suit was dismissed as withdrawn---Scope---Application for temporary injunction and appointment of receiver---Maintainability---Contention of the petitioner was that the main suit stood dismissed as withdrawn, therefore, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver could not remain executable under law, and prayed that respondent's application under Section 36, CPC for execution of said order be dismissed---Validity---Record revealed that the petitioner's application for temporary injunction and appointment of receiver was declined---Order declining the prayer of the petitioner was in no way executable as no order in terms of the Section 36 of the CPC was passed---Even if it was assumed that there was such an executable order, then the same stood merged into the main order, whereby the suit of the petitioner was dismissed as withdrawn---No executable order had been passed in the case---Orders of courts below were without jurisdiction and lawful authority and were set aside---Constitutional petition was allowed, accordingly.
Haji Abdul Wali Khan and another v. MuhammadHanif and another 1991 SCMR 2457 and Khaavir Saeed Raza v. Wajahat Iqbal 2003 CLC 1306distinguished.
Khawaja Zaffar Jehangir and Khawaja Aurangzaib Alamgir for Petitioner.
Fida Gul for Respondents.
Date of hearing: 25th October, 2011.
M.S. QURESHI FLOUR MILLS through Shehzad Qureshi VS REGIONAL MANAGER, UTILITY STORE CORPORATION, PESHAWAR2012 C L C 1255[Peshawar]Before Ejaz Afzal Khan, C.J. and Waqar Ahmad Seth, JM.S. QURESHI FLOUR MILLS through Shehzad Qureshi----PetitionerVersusREGIONAL MANAGER, UTILITY STORE CORPORATION, PESHAWAR and 4 others----RespondentsWrit Petition No.2535 of 2011, decided on 25/10/2011.
JUDGMENT
EJAZ AFZAL KHAN, J.--- Petitioner, through the instant petition, has questioned the order dated 28-6-2011 of the learned Additional District Judge-II, Peshawar, whereby, he dismissed its revision petition and maintained the order dated 27-1-2011 of the learned Civil Judge, XIV, Peshawar.
2.The learned counsel appearing on behalf of the petitioner contended that where the main suit stands withdrawn, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver couldn't remain executable under any canons of law and procedure.
3.As against that the learned counsel appearing on behalf of the respondents contended that the interlocutory order passed by the learned Trial Court on the application of the petitioner for temporary injunction and appointment of receiver wouldn't only remain in the field but would also be executable in terms of section 36 of the C.P.C. The learned counsel to support his contentions, placed reliance on the cases of Haji Abdul Wali Khan and another v. MuhammadHanif and another (1991 SCMR 2457) and Khaavir Saeed Raza v. Wajahat Iqbal (2003 CLC 1306)
4.We have gone through the record carefully and considered the submissions made by the learned counsel for both the parties.
5.The record reveals that the petitioners filed an application for the issuance of temporary injunction and appointment of receiver, which was declined. The said order was also upheld by this Court vide order dated 3-11-2009. A look at the order dated 27-1-2011 would reveal that the learned trial Court, after considering all the pros and cons of the matter declined the prayer of the petitioner for the issuance of temporary injunction as well as appointment of receiver. The order declining the prayer of the petitioner is, in no way, executable because no order in terms of section 36 of the C.P.C. was passed. Even if, for a while, it is assumed that there was an executable order, that stood merged into the main order, whereby, the suit of the petitioner was dismissed as withdrawn. Reference of the cases Haji Abdul Wali Khan and another v. Muhammad Hanif and another and Khaavir Saeed Raza v. Wajahat lqbal (Supra) wouldn't, in any way, advance the case of the respondents as in that case there was an executable order, whereas, no such order has been passed in the case in hand. The orders of the learned Courts below, therefore, being without jurisdiction and lawful authority can't be maintained.
6.Forthereasonsdiscussedabove,weadmitandallowthis writpetitionandsetasidetheimpugnedordersoftheCourts below.However,noneoftheobservations,mentionedabove,in thiscase,willdebartherespondentsfromtherecoveryofthe amount, if any, against the petitioner through the mode, prescribed by law, for the recovery of arrears of land revenue in addition to any other mode.
K.M.Z./65/PPetition allowed.
Civil Procedure Code (V of 1908)---
----S. 36, O.XXXIX, Rr. 1 &2, O.XL R. 1---Constitution of Pakistan, Art.199---Constitutional Petition---Execution of interlocutory order, when main suit was dismissed as withdrawn---Scope---Application for temporary injunction and appointment of receiver---Maintainability---Contention of the petitioner was that the main suit stood dismissed as withdrawn, therefore, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver could not remain executable under law, and prayed that respondent's application under Section 36, CPC for execution of said order be dismissed---Validity---Record revealed that the petitioner's application for temporary injunction and appointment of receiver was declined---Order declining the prayer of the petitioner was in no way executable as no order in terms of the Section 36 of the CPC was passed---Even if it was assumed that there was such an executable order, then the same stood merged into the main order, whereby the suit of the petitioner was dismissed as withdrawn---No executable order had been passed in the case---Orders of courts below were without jurisdiction and lawful authority and were set aside---Constitutional petition was allowed, accordingly.
Haji Abdul Wali Khan and another v. MuhammadHanif and another 1991 SCMR 2457 and Khaavir Saeed Raza v. Wajahat Iqbal 2003 CLC 1306distinguished.
Khawaja Zaffar Jehangir and Khawaja Aurangzaib Alamgir for Petitioner.
Fida Gul for Respondents.
Date of hearing: 25th October, 2011.
JUDGMENT
EJAZ AFZAL KHAN, J.--- Petitioner, through the instant petition, has questioned the order dated 28-6-2011 of the learned Additional District Judge-II, Peshawar, whereby, he dismissed its revision petition and maintained the order dated 27-1-2011 of the learned Civil Judge, XIV, Peshawar.
2.The learned counsel appearing on behalf of the petitioner contended that where the main suit stands withdrawn, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver couldn't remain executable under any canons of law and procedure.
3.As against that the learned counsel appearing on behalf of the respondents contended that the interlocutory order passed by the learned Trial Court on the application of the petitioner for temporary injunction and appointment of receiver wouldn't only remain in the field but would also be executable in terms of section 36 of the C.P.C. The learned counsel to support his contentions, placed reliance on the cases of Haji Abdul Wali Khan and another v. MuhammadHanif and another (1991 SCMR 2457) and Khaavir Saeed Raza v. Wajahat Iqbal (2003 CLC 1306)
4.We have gone through the record carefully and considered the submissions made by the learned counsel for both the parties.
5.The record reveals that the petitioners filed an application for the issuance of temporary injunction and appointment of receiver, which was declined. The said order was also upheld by this Court vide order dated 3-11-2009. A look at the order dated 27-1-2011 would reveal that the learned trial Court, after considering all the pros and cons of the matter declined the prayer of the petitioner for the issuance of temporary injunction as well as appointment of receiver. The order declining the prayer of the petitioner is, in no way, executable because no order in terms of section 36 of the C.P.C. was passed. Even if, for a while, it is assumed that there was an executable order, that stood merged into the main order, whereby, the suit of the petitioner was dismissed as withdrawn. Reference of the cases Haji Abdul Wali Khan and another v. Muhammad Hanif and another and Khaavir Saeed Raza v. Wajahat lqbal (Supra) wouldn't, in any way, advance the case of the respondents as in that case there was an executable order, whereas, no such order has been passed in the case in hand. The orders of the learned Courts below, therefore, being without jurisdiction and lawful authority can't be maintained.
6.Forthereasonsdiscussedabove,weadmitandallowthis writpetitionandsetasidetheimpugnedordersoftheCourts below.However,noneoftheobservations,mentionedabove,in thiscase,willdebartherespondentsfromtherecoveryofthe amount, if any, against the petitioner through the mode, prescribed by law, for the recovery of arrears of land revenue in addition to any other mode.
K.M.Z./65/PPetition allowed.
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