2021 C L C 92
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
MUHAMMAD ASGHAR and 2 others ----Petitioners
Versus
The ISLAMIC REPUBLIC OF PAKISTAN, through Secretary Defence Islamabad and
2 others ----Respondents
Civil Revision No.77 of 2016, decided on 27th December, 2019.
Civil Procedure Code (V of 1908) ---
----O.XXI, R.32 & Ss.48 & 11 ---Specific Relief Act (I of 1877), S.54 ---Suit for permanent
injunction ---Res judicata, principle of ---Applicability ---Decree for injunction ---Execution
petition ---Limitation ---Execution petition to enforce decree of injunction was dismissed
being time barred under S.48 of C.P.C. ---Plaintiffs filed second suit for permanent injunction
but same was dismissed on the ground of res judicata ---Validity ---Period provided und er
S.48 of C.P.C. did relate to execution of decree other than injunction decree ---Decree in the
present matter had been passed in a suit for injunction cum declaratory one ---Declaratory
decree was not executable under O.XXI, R.32 of C.P.C. but injunction decree was executable
under the said provision ---No limitation did run against the decree of injunction and decree
in favour of petitioners could be executed ---Plaintiffs were forced to reinitiate the
proceedings in the present suit but they had been non -suited on the ground of res judicata ---
Courts below had neither executed the earlier decree nor decided the present suit on merit ---
Case was remanded to the Trial Court for decision afresh on merits after framing of issues
and recording evidence ---Impugned judgments and decrees passed by the Courts below were
set aside and parties were directed to maintain status -quo till disposal of suit ---Revision was
allowed, in circumstances.
Muhammad Usman Yusafzai, Hassan Khan Sherani and Akhlaq Ahmed Shah for
Petiti oner.
Jehangir Rind for Respondent No.3.
Tahir Iqbal Khattak, Assistant Attorney General for Respondents Nos.1 and 2.
Date of hearing: 29th November, 2019.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----This Civil Revision
Petition is preferred against the judgment and decree dated 20.10.2015 and the judgment and
decree dated 22 -12-2015, respectively passed by the learned Civil Judge, Zhob ("trial court")
and the learned District Judge, Zhob, ("appellate court"), whereby the suit filed by the
petitioner s/plaintiffs has been dismissed and the appeal filed thereon was also declined.
2. Brief facts of the case are that the petitioners/plaintiffs filed a suit for "Mandatory
Injunction", wherein he stated that the petitioners/ plaintiffs are the lawful tenant of
defendants in Cinema with the name and style of Dayal Talkies (presently known as Zhob
Talkies) situated at Zhob bearing Survey No.51 part (old survey No.46), which was leased
out to the father of petitioners/plaintiffs in the year 1959 by rehabilitati on/custodian
department on a monthly rent of Rs.25/ - up to 1967, but thereafter defendants forcibly sealed
the said property for the sole purpose, to enhance the monthly rent; that in the year, 1972 the
said lease was further executed for a period of five years w.e.f 5.2.1971 and the monthly rent
was increased at the rate of Rs.100/ - p.m.; that the petitioners/plaintiffs paid the entire
amount including arrears of Rs.3500/ - and installed Diesel Engine as well as generators for
sole purpose to supply electri city thereon, but in the year 1976, the defendants made up his
mind to vacate the said premises by force and constrained the father of the plaintiffs to
approach to the competent court of law (Civil Judge, Loralai), by way of filing a suit, which
was decre ed on 26.5.1991 and the plaintiffs enjoys the peaceful possession of the said
property for a long time as tenant; that defendant No.3 filed an eviction application before
the Rent Controller/judicial Magistrate, Zhob on 21.01.2003, which was withdrawn with out
any condition on 9.8.2003.
3. That after service of notice, the respondents/defendants contested the suit by way of
filing written statement on legal as well as factual grounds.
The parties were directed by the trial court to adduce their evidence and on conclusion
of the trial, the suit filed by the respondents was dismissed. The respondents assailed the
order and decree of the trial court before the appellate court, which Was up -held, with the
following observations: -
"8. Hence, in the light of what has been discussed hereinabove the learned trial court
has rightly passed the impugned order dated 20th October, 2015 after considering the
evidence of the parties, all the relevant facts and circumstances, as such the same is
upheld and the appeal in han d is hereby dismissed accordingly."
4. The learned counsel for the petitioners and the respondents were heard at reasonable
length and record appended with memo. of the petition was perused.
5. Perusal of the record reveals that initially a 'suit for injunction' was filed by
petitioners' father in the court of Civil Judge 1st class Loralai in the year 1985, which was
decreed vide judgment and decree dated 28th March 1991. Thereafter, the responde nt No.3 in
the year 2003 also approached the rent controller by filing eviction application; however, the
same was withdrawn. The petitioners approached the District Judge, Zhob by filing an
application on 25.06.2007 for execution of the judgment and decre e dated 28th March 1991,
which was dismissed vide order dated 23rd June 2008 holding it to be barred by time under
Section 48 of C.P.C. The said order was assailed before this court, which too was declined
vide order dated 18th November 2011, on the simila r ground.
6. It is imperative to add here that in the earlier suit the decree was for Injunction, while
there is no limitation against the decree of injunction. In order to understand better, the
Section 48, C.P.C. being relevant is reproduced herewith: -
"Section 48, C.P.C. Execution barred in certain cases. ---(1) Where an application to
execute a decree not being a decree granting an injunction has been made, no order
for the execution of the same decree shall be made upon any fresh application
presented after the expiration of (six) years from --
(a) the date of the decree sought to be executed, or
(b) where the decree or any subsequent order directs any payment of money or the
delivery of any property to be made at a certain date or at recurring periods , the date
of the default in making the payment or delivery in respect of which the applicant
seeks to execute the decree.
(2) Nothing in this section shall be deemed ---
(a) to preclude the Court from ordering the execution of a decree upon an applicatio n
presented after the expiration of the said term of (six) years, where the judgment -
debtor has, by fraud or force, prevented the execution of the decree at some time
within (six) years immediately before the date of the application; or
(b) to limit or ot herwise affect the operation of Article 183 of the First Schedule to the
Limitation Act, 1908."
A bare reading of the above provision would show that the period provided under
section 48 ibid relates to execution of decrees other than injunction decrees. The decree
passed in the previous suit and pressed into service for its execution was an injunction cum
declaratory one. Though declaratory decrees are not executable but injunction decrees are
executable under the provisions of Order XXI, Rule 32, C.P.C. and more particularly its sub -
rules (1) and (5) provide the mode of execution of such decrees which are reproduced for
ready reference: -
"ORDER XXI C.P.C. Execution of Decrees and Orders.
"Rule 32. Decree for specific performance, for restitution of conj ugal rights, or for an
injunction. ----(1) Where the party against whom a decree for the specific performance
of a contract, or for restitution of conjugal rights, or for an injunction, has been
passed, has had an opportunity of obeying the decree and has w illfully failed to obey
it, the decree may be enforced in the case of a decree for restitution of conjugal rights
by the attachment of his property or, in the case of a decree for the specific
performance of a contract or for an injunction by his detention in prison, or by the
attachment of his property, or by both.
(2) xxxxxxxxxxxxxxxxx
(3) xxxxxxxxxxxxxxxxx
(4) xxxxxxxxxxxxxxxxx
(5) Where a decree for specific performance of a contract or for an injunction has not
been obeyed, the Court may, in lieu o f or in addition to all or any of the process
aforesaid, direct that the act required to be done may be done so far as practicable by
the decree -holder or some other person appointed by the Court, at the cost of the
judgment -debtor, and upon the act being done the expenses incurred may be
ascertained in such manner as the Court may direct and may be recovered as if they
were included in the decree."
A bare reading of sub -rule (1), as reproduced above would show that a decree for an
injunction can be enforc ed by detention in prison or by the attachment of property of the
judgment debtor or by both, of the person who had an opportunity of obeying the decree and
has willfully failed to obey. Similarly, under sub -rule (5), a decree for injunction if not been
obeyed, the court may in lieu of or in addition to all or any of the process aforesaid direct
that the act required to be done may be done so far as practicable by the decree holder or
some other person appointed by the court, at the cost of the judgment -debtor and upon the act
being done the expenses incurred may be ascertained in such manner as the court may direct
and may be, recovered as if they were included in the decree.
7. Unfortunately, the executing court in previous suit and this court as well esca ped the
above provisions of law. Since the period provided under section 48, C.P.C. is not applicable
to the execution of injunction decrees, nor is any such restrictive period Provided anywhere
else in the code or under "The Limitation Act, 1908" while th e language of Order XXI Rule
32, C.P.C. would suggest that as and when on having an opportunity to obey the decree and
willfully failed to do so, then the provisions of sub -rule (1) and sub -rule (5) would come into
play and the defaulter be dealt with in a ccordance with the said provision.
8. In view of afore -mentioned provisions, since no limitation runs against the decree of
injunction, as such, the decree passed in favour of the petitioners' father is still in field and
could be executed. However, due to the courts' orders, the petitioners were forced to
reinitiate the proceedings in the instant suit, but both the courts below non -suited the
petitioner on the ground of res judicata, and surprisingly, neither the previous degree was
allowed to be executed, nor the present suit was decided on merit.
9. During pendency of the petition, this court vide order dated 13th November, 2017
ordered that 'in the meanwhile, parties are directed to maintain status -quo in respect of
premises in question' however, subsequently the fact appeared that the petitioners have been
dispossessed from the property in question by the respondents by force and without adopting
any due course of law. Thus, the petitioners also filed an application for initiating the
contempt of courts proceeding against the respondent No.3. The action of the respondent of
taking over the possession by force, was without any due course of law, instead the due
course was to approach the Rent Controller by invoking the provisions of Section 17 of th e
Cantonment Rent Restriction Act, 1963. After dispossessing the petitioners from the
possession, a new position emerged. The suit in hand was only for mandatory injunction, as
at the time of filing of the suit, the petitioners were in possession, but subs equently
dispossessed.
10. Since the suit of the petitioner has not been decided on merit, rather non -suited on the
ground of res judicata, which too was due to the courts' orders for not entertaining the
execution application of the petitioners in previou s suit, therefore, the best course would be
to remand the case to the trial court for reframing issue to the extent of possession, affording
opportunities to the parties to lead their evidence and thereafter to decide the case strictly in
accordance with t he law. The trial court is directed to clearly decide the question of
possession, particularly in the light of this court order dated 13th November 2017. passed in
this case, and act as according to law with regard to dispossession of the petitioner during
pendency of lis, keeping in view the principles of lis -pendens as enshrined under the
provision of Transfer of Property Act, 1882.
11. As far as the contempt application No. 21 of 2017, is concerned, it is in between the
court and the alleged contemnor. N eedless to observe here that in response to this court's
notice respondent/alleged contemnor, (the then Executive Officer Cantonment Zhob)
appeared before the court on 26th October 2018 and stated at the bar that he was neither
aware nor copy of the order dated 13th November 2017 has ever been served upon him,
during his posting at the relevant station and thereafter the counter affidavit to the contempt
application was also filed, which further confirms that neither the notice nor the order passed
by this court was served upon the respondent. As the merit of the case have not been
discussed, therefore, I intentionally refrain myself to render any further findings on the
application, when to the extent of possession, an additional issue is already directed t o be
framed by the trial court. Therefore, I am not inclined to proceed with this contempt
application, which stands disposed of.
In view of above discussion the judgment and decree dated 20.10.2015 and the
judgment and decree dated 22 -12-2015, respective ly passed by the learned Civil Judge, Zhob
("trial court") and the learned District Judge, Zhob, are set aside, the case is remanded to the
trial court with the direction to frame issue to the extent of possession as well, and after
affording fair opportun ities to the parties for leading their evidence and, decide the suit on
merit strictly in accordance with the law. The parties are directed to maintain status -quo in
respect of the suit property, till disposal of the suit.
ZC/131/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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