PLJ 2023 Quetta 87
Present: Gul Hassan Tareen, J.
Dr. SARA JAFFER--Petitioner
versus
ZARAK KHAN and another--Respondents
C.R. No. 105 of 2022, decided on 10.8.2022.
Civil Procedure Code, 1908 (V of 1908)--
----O.XLIII Rr. 1(r) & 3, O.XXXIX Rr. 1 & 2--Specific Relief Act, (I of 1877), Ss. 39, 42 & 54--Suit for declaration, cancellation and permanent injunction written--Consenting statement--Allotment of quarter to real son after retirement of his mother--Cancellation of allotment order-- Respondent No. 1 was step son of retired employee--Application for cancellation of allotment--Dismissed--Filing of writ petition--Dispose of--Restoration of allotment order in favour of petitioner--Issuance of notices to respondent No. 1 for vacation of quarter--Dismissal of application for interim relief--Appeal--Allowed--Violation of mandatory provision of law-- Deprivation from substantive right of appeal--Respondent No. 1 is neither licensee of subject quarter nor lessee thereof, as such is “unauthorised occupant” of subject quarter, notices of eviction were rightly issued to Respondent No. 1--Respondent No. 1 had preferred appeal without first complying mentioned condition precedent and succeeded to obtain an injunctive relief from appellate Court--Appellate Court has failed to take judicial notice of this mandatory provision of law as such, committed material irregularity and illegality--Respondent No. 1 is not leaseholder of subject quarter nor a allottee and is not paying house rent to public exchequer--Respondent No. 1 has not a prima facie and an arguable case for grant of temporary injunction--Respondent No. 1 has no prima facie case, question of irreparable loss does not arise at all--Balance of inconvenience lies in favour of petitioner--Appeals against such interim orders remained pending for more than six months, due to which an impugned order looses its legal effect because of lapse of six months and an aggrieved party from such order, become remedy less and is deprived from a substantive right of appeal, therefore, the provisions of Order XLIII Rule 3, C.P.C. must be strictly complied with letter and spirit prior to presentation of such appeals. [Pp. 92 & 96] A, D, E, F & G
Civil Procedure Code, 1908 (V of 1908)--
----O. XLIII, R. (3)--Compliance of provision--Provisions of Order XLIII Rule 3, C.P.C. are mandatory--Appeal preferred without compliance of this mandatory provision would, not be maintainable and liable to rejection. [P. 96] C
Balochistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966--
----S. 10--Powers and jurisdiction of Court--Sections imposes a complete clog on power and jurisdiction of Court in relation to grant of temporary injunction. [P. 92] B
PLD 1983 SC 693 and PLD 1988 Quetta 9.
Mr. Abdul Wahab Buledi, Advocate for Petitioner.
Mr. Muhammad Ali Mughal, Advocate and Mr. Naseer-ud-Din Mengal, Additional Advocate General for Respondent No. 1.
Date of hearing: 5.8.2022.
Judgment
This Civil Revision Petition under Section 115, the Civil Procedure Code 1908, (“C.P.C”), is directed from the order of the learned In-charge Additional District Judge-II, Quetta (“the appellate Court”), whereby the appeal of the Respondent No. 1 (plaintiff in the suit) under Order XLIII Rule 1(r), C.P.C. was allowed and a status quo order was passed in his favour.
2. Brief facts of the case are that the Respondent No. 1 had instituted a civil suit against the present petitioner and the Respondent No. 2 for declaration, cancellation, consequential relief and permanent injunction to the effect that the father of the Respondent No. 1 was a civil servant in Revenue Department. A quarter bearing No. D-41 situated at Wahdat Colony Quetta (“the subject quarter”) was allotted to him. On superannuation of his father, the subject quarter was allotted to his mother Dr. Noor Jahan Naudhani, Chief Medical Officer Ahmed Khanzai, Sariab Road, Quetta. On her superannuation, the subject quarter was allotted in his name vide allotment order dated 31st December, 2019 and since then he along with family is residing in the subject quarter. Latter, the petitioner filed a Constitution Petition No. 165/2020 before the High Court of Balochistan, Quetta which was disposed of on 17th May, 2021 by directing the Respondent No. 2 to decide the matter afresh after hearing both the parties. It was also averred that the Respondent No. 2 without affording an opportunity of hearing, cancelled the allotment order of the Respondent No. 1 and allotted the subject quarter in the name of the petitioner vide allotment order dated 1st July, 2021. He approached the Respondent No. 2 by making an application for cancellation of the allotment order of subject quarter from the name of the petitioner. However, despite of it, the application of the Respondent No. 1 was not entertained. In suit, the Respondent No. 1 has sought declaration that allotment order of the petitioner, dated 1st July, 2021 be declared as illegal; declaration regarding right of allotment of the Respondent No. 1 and permanent injunction. The suit was accompanied by an application under Order XXXIX Rules 1 & 2, C.P.C., whereby, the Respondent No. 1 has sought following relief:
“It is therefore respectfully prayed that allotment order dated 01.07.2021 in the name of Respondent No. 2 may kindly be suspended and respondents may kindly be restrained from vacating the applicant plaintiff and family from quarter in question i.e. quarter bearing D-41 situated at Wahdat Colony Quetta, till pendency of the suit, in the interest of justice.”
3. On institution and registration, of the suit, the trial Court summoned petitioner/ Defendant No. 2 and Respondent No. 2. Both submitted their contesting written statements. After hearing parties to the suit, the trial Court was pleased to hold that the three ingredients for grant of temporary injunction do not favour Respondent No. 1, as such dismissed the application under Order XXXIX Rules 1 & 2, C.P.C. vide order dated 29th December, 2021. Respondent No. 1 preferred an appeal under Order XLIII Rule 1(r), C.P.C., which came up for hearing before the Court of In-charge Additional District Judge-II, Quetta. The appellate Court vide order dated 26th February, 2022, has set aside the order passed by the trial Court and issued a status quo order in favour of the Respondent No. 1 and against the present petitioner and the Respondent No. 2.
4. Learned counsel, representing the petitioner, Mr. Abdul Wahab Buledi, submits that vide allotment order dated 5th April, 2018 the subject quarter was allotted by the Respondent No. 2 in favour of the petitioner, subject to vacation on retirement by the then allottee (Dr. Noor Jahan Naudhani). However, surprisingly, by an allotment order dated 31st December, 2019, the allotment of the petitioner was cancelled and allotted it to the Respondent No. 1 (step son of Dr. Noor Jahan Naudhani). Against this subsequent allotment order, the petitioner preferred a Constitution Petition No. 165/2020 before this Court. On 17th May, 2021, this Court was pleased to dispose of the petition with the following observations:
“In view of the above, the impugned allotment order dated 31.12.2019, passed by the Chairman House Allotment Committee/ Secretary S&GAD is set aside and the request of Respondent No. 4 shall be deemed to be pending before the Committee. The Committee is directed to decide the fate of the same in accordance with law after providing fair opportunities of hearings to both the parties positively within a period of one month.”
He submits that vide an allotment order dated 1st July, 2021,
the former allotment order dated 5th April, 2018 was restored in favour of the petitioner; submits that under Article 201 of the Constitution of the Islamic Republic of Pakistan, 1973 (“The Constitution”), the order passed by this Court on 17th May, 2021 was binding on the appellate Court and the impugned order is brief and non-speaking.
5. The learned Mr. Muhammad Ali Mughal, representing the Respondent No. 1, has conversely argued that the petitioner was posted as Assistant Professor Jhalawan Medical College, Khuzdar, therefore, the allotment of the subject quarter in favour of the petitioner is illegal. He referred to and relied upon Rule 3(1), Residential Accommodation at Quetta (procedure for allotment) Rules, 2009 (“Rules 2009); states that the language of Rule 11(4) of the Rules, 2009 does not make any discrimination between real son and step son; states that the allotment order of the petitioner is in sheer disregard of the order passed by this Court. He was condemned unheard while cancelling his allotment order; states that since, posting of the petitioner is at Khuzdar, therefore, the allotment order by itself stood seize by application of the Rule 11(2) of the Rules, 2009. Concluding his submission, he contends that Respondent No. 1 has a strong prima facie and an arguable case for grant of temporary injunction which has rightly been granted by the appellate Court vide impugned order.
6. Learned Additional Advocate General Mr. Naseer- ud-Din Mengal states that he relies on his written statement submitted before the trial Court.
7. I have heard at length the learned counsel for the parties and the learned Additional Advocate General and gone through the record with their able assistance.
8. On retirement of the former allottee, Dr. Noor Jahan Naudhani, the subject quarter was allotted to the petitioner vide allotment order dated 05th April, 2018 which stands exist till today. Respondent No. 2 issued eviction notices to the Respondent No. 1 for vacation of the subject quarter. While passing the impugned order, the appellate Court appears to have overlooked, the Balochistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 (“The Ordinance, 1966”). The eviction notices were purportedly issued under Section 5 sub-section (1) of the Ordinance, 1966. For ease of reference, the said section is reproduced hereunder:
“5. Eviction of unauthorised occupants.--(1) If Government is satisfied after making such enquiry as it thinks fit that a person is an unauthorised occupant of any land or building, it may, by order in writing, direct such person to vacate the land or building within the period specified in the order.”
The referred subsection mentions the words “unauthorised occupant”. The word unauthorised occupant has been expressly defined in Section 2 (f) of the Ordinance, 1966, which reads:
“2(f) “unauthorised occupant” means a person who is in occupation of any land or building without the express permission or authority of the Government and includes--
(i) a person inducted into any land or building by the lessee or licensee thereof; and
(ii) every member of the lessee’s or licensee’s family who remains in occupation of any land or building after the determination of the lease or licence in respect of the same.”
9. Placing reliance on the referred definition of “unauthorised occupant”, the Respondent No. 1 is neither licensee of the subject quarter nor lessee thereof, as such is “unauthorised occupant” of the subject quarter, therefore, the notices of eviction were rightly issued to the Respondent No. 1. Admittedly, the possession of the Respondent No. 1 on the subject quarter is without a legal and an equitable title. Section 10 of the Ordinance, 1966 is of significant importance, which reads:
“10. Jurisdiction of Civil Courts barred.--No Civil Court shall pass an order in any suit or proceeding granting a temporary or interim injunction restraining Government, or any authority or officer authorised by it, from taking possession of any land or building under this Ordinance. “
The appellate Court has granted application of the Respondent No. 1 made under Order XXXIX Rules 1 & 2, C.P.C., in sheer disregard of the provisions of Section 10 of the Ordinance, 1966. The referred section imposes a complete clog on the power and jurisdiction of the Court in relation to the grant of temporary injunction. The appellate Court has overlooked the referred mandatory provision of law while granting the appeal, as such by the impugned order, has exercised a jurisdiction not vested in it by law. The impugned order, therefore, attracts the provisions of Section 115(1)(a) of the, C.P.C. The jurisdiction of Civil Court is curtailed from passing temporary injunction or ad-interim injunctive order in any suit restraining the Government or any officer authorized by it from taking possession of any land or building under the Ordinance,1966 from a person found in an illegal and unauthorised possession of the Government land or building. The impugned order is, therefore, violation of the mandatory statutory provision of Section 10 of the Ordinance, 1966. The opening words of Section 10 of the Ordinance, 1966 (“no Court shall”) place an embargo on the jurisdiction of Civil Courts in relation to grant of ad-interim or temporary injunction. Apart from it, Section 56(d) of the Specific Relief Act, 1877 also places a clog of the like nature on the power of the Court to issue injunctive orders. The contention of learned counsel representing the petitioner is correct that the appellate Court had no jurisdiction to grant the application of Respondent No. 1 made under Order XXXIX Rules 1 & 2, C.P.C.
10. There is another significant aspect of the case as well. Order XLIII Rule 3, C.P.C. provides a condition precedent for filing an appeal from the orders mentioned in Order XLIII Rule 1, C.P.C. Rule 3 of Order XLIII reads:
“3. Notice before presentation of appeal. (1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against either personally or through registered post acknowledgement due and the postal or other receipt shall be filed with the memorandum of appeal for the report of the appellate Court.
(2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine.”
Sub-rule (1) of Rule 3 of Order XLIII, C.P.C. requires that the party preferring an appeal against any of the order prescribed by Order XLIII Rule 1, C.P.C. made during pendency of the suit must give notice of such appeal to the respondent or his advocate before presenting the appeal by delivering a copy of memorandum of appeal along with a copy of order appealed against in order to satisfy the appellate Court that Rule 3 of Order XLIII, C.P.C. has been complied with. The appellant should obtain acknowledgment receipt to the effect that copy of the appeal has, indeed, been received by the respondent or his advocate. The purpose of Order XLIII Rule 3, C.P.C. is to avoid the delay that is occasioned in issuance of notice to the respondent and having service effected on the respondent in a case where the main suit is still pending adjudication and only the correctness of some interlocutory order is under question. When confronted, the learned counsel, representing the Respondent No. 1, with this material proposition of law, he frankly conceded and submits that since Respondent No. 1 was under an immediate threat of dispossession by the Respondent No. 2, therefore, the appeal was filed without issuing prior notice to the petitioner and Respondent No. 2 or their advocates, of his intention filing the appeal and obtaining an injunctive order. The Hon’ble Supreme Court of Pakistan in case of Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin, published in PLD 1983 SC 693, authoritative held as under:
“15. Coming now to the nature of the provisions of the newly-inserted Rule 3 of Order XLIII, C.P.C. We observe that sub-rule (1) of Rule 3 requires that the party preferring an appeal against any order made during the pendency of the suit must give notice of such appeal to the respondent or his Advocate before presenting the appeal by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against. In order to satisfy the appellate Court that this has been done, he should obtain an acknowledgment receipt to the effect that a copy of the grounds of appeal along with the other documents has, indeed, been received by the respondent or his Advocate,
16. The purpose of this provision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in a case where the main suit is still pending adjudication and only the legality or correctness of some interlocutory order is under question. Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertainability of the appeal.
17. Sub-rule (2) of Rule 3 provides that on receipt of the notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it, and contest the appeal with a view to getting it dismissed in limini, in case he succeeds in doing so he may even be awarded costs.
18. The above provision highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an interlocutory order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limini stage with the permission of the Court, with a view to getting the appeal dismissed at that very stage and, thus, bring to a close the litigation directed against an order passed pendente lite favourable to him. This would not be possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be lost and resultantly the provisions of sub-rule (2) of Rule 3 would be rendered futile, inutile and nugatory. Hence we think that issuance of notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that the provisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinising appeals preferred against the interlocutory orders made, during the pendency of a suit of all the Courts concerned, do require the appellant or his Advocate to submit, along with the other documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his Advocate by delivering him a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his Advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgement receipt should not be entertained.”
This Court in the case of Haji Muhammad Naeem and another v. Malik Ghulam Nabi and 5 others, published in PLD 1988 Quetta 9 held that “without complying with required formalities specifically provided by Order XLIII Rule 3, C.P.C., the appeal would not be deemed to have been validly presented.” This Court further held that “where opposite party gets prior intimation about intended filing of appeal, entered appearance at the time of preliminary hearing of the appeal, then non compliance of Order XLIII Rule 3, CPC would not be detrimental.” Relevant extract of this judgment is reproduced hereunder:
“There are two other aspects concerning points involved in the petition which are of considerable importance. Firstly, as already discussed, provisions of Order XLIII, Rule 3 are obviously mandatory. However, same appear to have been introduced merely for the benefit of opposite party against whom appeal is filed for facilitating his participation to defend the proceedings at very initial stage. Since said provisions are apparently aimed at individual benefit, therefore, opposite party in my opinion has option to waive the requirements by coming forward in its own interest to put up defence at preliminary hearing. Therefore, if opposite party voluntarily opts to appear and contest the proceedings in such circumstances practically purpose of law would be adequately served, thus mere technical noncompliance would not be detrimental. In such particular circumstances opposite party would be estopped from raising objection concerning defect of required notice, as also observed in case Abdul Ghani v. Settlement and Rehabilitation Commissioner and another 1984 CLC 901 at 903 and M/s. Haji Suleman Gowawala and Sons Ltd. v. Usman and 13 others 1985 C L C 168 at 176 & 177.”
In this behalf, I may also refer to the following judgment of Zulfiqar Ahmad Butt and another v. Asad Dar and 4 others, published in 2006 CLC 787, in which it has been held that “non compliance of mandatory requirement of Order XLIII Rule 3, C.P.C. entailed penal consequences and no appeal could have been entertained without issuance of requisite notice.”
11. After perusal of the cited case laws, I am of the firmed opinion that the provisions of Order XLIII Rule 3, C.P.C. are mandatory. Appeal preferred without compliance of this mandatory provision would, not be maintainable and liable to rejection. In such case, the appellant may file appeal afresh, subject to limitation, after complying with the mandatory provision and fresh appeal is not barred. In the case in hand, Respondent No. 1 had preferred appeal without first complying the mentioned condition precedent and succeeded to obtain an injunctive relief from the appellate Court. The appellate Court has failed to take judicial notice of this mandatory provision of law as such, committed material irregularity and illegality.
12. On merits, Respondent No. 1 is not leaseholder of the subject quarter nor a lessee/allottee thereof and is not paying house rent to the public exchequer. On the other hand, the petitioner is legal allottee of the subject quarter vide allotment order dated 5th April, 2018, however, she has been deprived till today from getting possession of the legally allotted subject quarter. Hence on merits too, Respondent No. 1 has not a prima facie and an arguable case for grant of temporary injunction. Since, Respondent No. 1 has no prima facie case, therefore, question of irreparable loss does not arise at all. Respondent No. 1 is unauthorised occupant of the subject quarter, therefore, balance of inconvenience lies in favour of the petitioner.
13. It is a matter of great regret that appeals against interim orders remain pending for a considerable time and even stand infructuous by lapse of time. Order XXXIX Rule (2-B), C.P.C. provides statutory life of an order made under Order XXXIX Rules 1 & 2, C.P.C., which ceases to have effect after six months. However, it has been consistently observed and noticed that appeals against such interim orders remained pending for more than six months, due to which an impugned order looses its legal effect because of lapse of six months and an aggrieved party from such order, become remedy less and is deprived from a substantive right of appeal, therefore, the provisions of Order XLIII Rule 3, C.P.C. must be strictly complied with letter and spirit prior to presentation of such appeals. It is an obligation of the appellate Court as well, to see whether the provisions of Order XLIII Rule 3, C.P.C. have been complied with, at the time of presentation and registration of such appeals.
For what has been discussed above, I am inclined to allow this revision petition. Resultantly, the impugned order dated 26th February, 2022 passed by the Court of In-charge Additional District Judge-II, Quetta in Civil Appeal No. 02/2022 is set aside and order of the trial Court dated 29th December, 2021 is restored. Since the appeal of the Respondent No. 1 was allowed by the appellate Court, therefore, the parties shall bear their own costs.
For information and compliance, the Registrar of this Court Shall transmit copy of this judgment to all the learned Judges of the District Judicature/District Courts.
(Y.A.) Revision petition allowed
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