PLJ 2024 Karachi (Note) 8
Present: Muhammad Junaid Ghaffar and Adnan-ul-karim Mamon, JJ.
MAQBOOL AHMAD and others--Petitioners
versus
MUHAMMAD HASHIM and others--Respondents
C.P. No. D-280 of 2023, decided on 17.5.2023.
Civil Procedure Code, 1908 (V of 1908)--
----S. 151--Constitution of Pakistan, 1973, Art. 199--Application for seeking direction to revenue authorities--Non-compliance of observations of Court--Allowed--Functus officio--Application was filed after rejection of plaint--Bona fide error--Once plaint was rejected by trial Court, said Court for all intent and legal purposes became functus officio, and no application of such a nature in terms of Section 151, CPC could have been entertained by said Court--Once a case was finally decided, Court became functus officio and only provision which allowed changes in final order was provision of review, scope of which was limited to correcting an error that was floating on face of record--Court after entertaining application has passed orders with certain directions, including police aid and that too without notice to Petitioners--Such conduct on part of trial Court is least appreciated--Trial Court has exceeded its jurisdiction in entertaining application of Respondent No. 1 under Section 151, CPC after passing an order for rejecting plaint; could not have passed any such orders--Petition allowed.
[Para 3, 4 & 7] A, B & C
2018 SCMR 359, 2016 SCMR 179, 2020 CLD 473 and 2019 CLD 526.
Mr. Parkash Kumar, Advocate for Petitioners.
Mr. Mumtaz Alam Leghari, Advocate for Respondent No. 1
Mr. Rafiq Ahmed Dahri, Asstt: A.G.
Date of hearing: 17.5.2023.
Order
Through this petition, the petitioners have impugned two orders dated 11.2.2023 and 13.8.2022 passed respectively by District Judge, Tando Allahyar in Civil Revision Appl. No. 34 of 2022 and 1st Senior Civil Judge, Tando Allahyar in F.C. Suit No. 78 of 2022, whereby an application under Section 151, CPC filed by Respondent No. 1 has been allowed.
Heard learned counsel for the parties and perused the record. It appears that Respondent No. 1 filed a suit for declaration, possession and permanent injunction wherein the petitioners filed an application under Order VII Rule 11, CPC for rejection of plaint which was allowed vide order dated 20.04.2022; however, while rejecting plaint the trial Court made some observations as to advising the plaintiff to approach concerned Revenue Authorities for demarcation/ survey, whereas, they were also given certain directions. Admittedly, such order of the trial Court regarding rejection of plaint was never challenged by Respondent No. 1. Thereafter Respondent No. 1 filed an application under Section 151, CPC seeking directions to the revenue authorities for compliance of the observations as recorded in the order of rejection of the plaint. Such application was allowed vide order dated 13.8.2022 and police aid was provided for taking possession from the petitioners as well as certain further directions to the revenue authorities. The petitioners impugned such order before the District Judge in Civil Revision Application and despite recording a finding that an application under Section 151, CPC could only be entertained and decided when a lis is pending and admittedly at the time of filing of application under Section 151, CPC the case vas not pending and was disposed of on 20.4.2022; however. Notwithstanding these observations and even after such conclusion, the Revision was dismissed which apparently appears to be a result of some confusion.
Be that as it may, in our considered view once the plaint was rejected by the trial Court, the said Court for all intent and legal purposes became functus officio, and no application of such a nature in terms of Section 151, CPC could have been entertained by the said Court. Per settled law, once a case was finally decided, (as is the case in hand) the Court became functus officio and the only provision which allowed changes in the final order was the provision of review, scope of which was limited to correcting an error that was floating on the face of the record.[1] It is further settled that after passing of a final order giving a fixed period for making compliance of any direction, not even an application under Section 148, CPC could have been granted by the trial Court as on the said date the trial Court had become functus officio by virtue of its judgment/decree as it ceased to have jurisdiction in the matter.[2] It may also be observed that it was never a case of passing of a preliminary decree, wherein, the Court still retains powers to see that whether the directions contained in the said decree have been complied with before passing a final decree. In a case wherein the plaint is rejected, the said order is a final order. In Anees-ur-Rehman[3] it has been held that “functus officio” meant having fulfilled all functions, discharged duty/duties, or discharged office, or accomplishment of purpose, which resulted in something no longer remaining in force or having authority. When a Court would pass a final order for disposal of a suit, the Court would become functus officio and would be precluded from passing any order, which could disturb or modify the same, which in fact would open up the entire case.[4]
Not only this, the Court after entertaining the application has passed orders with certain directions, including police aid and that too without notice to the Petitioners. Such conduct on the part of the trial Court is least appreciated. In fact, the order of the trial Court tries to seek execution of its observations and advise to Respondent No. 1/Plaintiff so recorded while rejecting the plant in the Suit. It appears to have exercised powers of an executing Court without any judgment and decree of such nature. This in fact appears to be a novel idea of implementing an order which by itself is neither an order with lawful authority or jurisdiction nor is executable in such manner.
This Court while entertaining this petition on 9.3.2023 and passing of ad-interim orders, also called report from the concerned Courts and the Court of 1st Senior Civil Judge, Tando Allahyar has sent its report dated 16.3.2023 wherein though an attempt has been made to defend the impugned order, however, in para-4 it has been stated as under:
Sir, concerned Revenue Authorities had taken certain Actions upon Suit Property/Disputed Property, under Revenue Laws/Rules, with their own, and not on the Orders of this Court.”
From perusal of the aforesaid report of the learned Judge it appears that on the one hand he has defended his order, and on the other, he states that the action taken by the Revenue Authorities was pursuant to, and under respective Revenue Laws on their own and not on the orders of the Court. This stance apparently does not seem to be correct or justified as admittedly the issue triggered when an application under Section 151, CPC was filed and entertained by the Court. This is further strengthened when comments of the Respondent No. 4 and 6 are examined wherein it is categorically stated by them that they have acted in compliance of the orders passed by the trial Court on 13.08.2022
In view of hereinabove facts and circumstances of this case it appears that the trial Court has exceeded its jurisdiction in entertaining the application of Respondent No. 1 under Section 151, CPC after passing an order for rejecting the plaint; hence, could not have passed any such orders. Insofar as the order of the Revisional Court is concerned, on perusal of the order in totality, it reflects that the reasoning so assigned is in favour of the petitioner, however, the final conclusion is otherwise. This, to us, appears to be a bona fide error. Accordingly, order dated 13.8.2022 passed by the Trial Court on the application of Respondent No. 1 under Section 151, CPC is hereby set-aside, whereas, order of the Revisional Court dated 11.2.2023 is modified to the extent of last paragraph which is hereby set aside. The petition is allowed in the above terms.
(Y.A.) Petition allowed
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