2011 M L D 1982
[Quetta]
Before Muhammad Noor Meskanzai, J
Haji KHAIR BAKHSH and 5 others ---Petitioners
Versus
ALLAH DAD and 5 others ---Respondents
Civil Revision No.459 of 2007, decided on 19th August, 2011.
Civil Procedure Code (V of 1908) ---
----O. XXI, R. 32 ---Execution of decree for permanent injunction restraining defendant
from interfering in water channel of decree -holder ---Undertaking given by judgment
debtor be fore High Court in first round of litigation not to interfere in smooth running of
such channel and its utilization ---Order of Executing Court in second execution
application directing judgment debtor to furnish surety in sum of Rs. 50,000 for not
violatin g such decree ---Dismissal of judgment debtor's appeal by Appellate Court ---
Judgment debtor's plea that Executing Court had no jurisdiction to pass the impugned
order ---Validity ---Contents of revision petition would show that judgment debtor was
bent upon i nterfering with such channel ---Executing Court had also observed that
judgment debtor was interfering with such channel ---Judgment debtor was neither ready
to honour such decree nor had any grace for such undertaking given before High Court ---
Difficulties of a litigant would start after passing of a decree in his favour ---Each and
every interference with such channel would amount to breach of surety bond and provide
a genuine ground for its forfeiture ---Decree holder in case of recurring cause of action
would have right to ask for fresh surety, if surety already provided stood liable to be
forfeited on proof of its violation ---High Court dismissed revision petition in
circumstances.
Muhammad Aslam for Petitioners.
Mumtaz Hussain Baqri for Respondents.
Date of hearing: 22nd July, 2011.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---The petitioners, through instant
petition, have called in question the legality and propriety of order dated 21st June, 2007
passed by Qazi, Khuzdar and order dated 30th August, 200 7 passed by Majlis -e-Shoora,
Khuzdar, whereby appeal filed by petitioners against the order of Qazi, Khuzdar was
dismissed by upholding the order passed by Qazi, Khuzdar.
2. Facts, in brief, as gathered from the record are that a suit filed by respondents
regarding the rights of water channel in the name of Shandi Nadi in Lafar Zard Sub -
Tehsil Nal District, Khuzdar was decreed in favour of predecessor -in-interest of
respondents in the year, 1982 in following terms: --
3. The appeal filed against the said ju dgment and decree was dismissed in
September, 1982. The Civil Revision Petition No.59 of 1982 preferred against the
judgment and decree passed by the Majlis -e-Shoora was also dismissed on 11th May,
1983. An execution application was filed on 6th November, 2000 before Qazi, Khuzdar.
The learned executing Court ordered for forfeiture of the surety submitted by the
petitioners amounting to Rs.100,000. The order so passed by the executing Court was set
aside by the appellate Court vide order dated 18th April, 2 001. The said order was
assailed through Civil Revision Petition No.121 of 2001 before this Court, which was
disposed of on 4th May, 2005 upon the undertaking of learned counsel for the petitioners.
The operative portion of the order is reproduced as under :--
"Learned counsel for respondents has filed undertaking that respondents will abide
by the judgment and decree dated 19th June 1982 passed by Qazi Khuzdar and;
will not interfere in the smooth running of water channel (Shandi Nadi) and
utilization ther eof:
In view of above undertaking, the respondents are restrained from interfering in
the water channel, in any manner, whatsoever.
Petition is accordingly disposed of in the above terms."
4. The respondent No.1 on 1st October, 2001 filed another executi on application
against the petitioners before the Qazi, Khuzdar. Through that application, the
respondents requested for obtaining surety from the petitioners for non -interference in the
water channel Shandi Nadi. The application was allowed vide order dat ed 19th December,
2006 by calling upon the respondents to furnish the surety in the sum of Rs.50,000 for
non-interference in the water channel Shandi Nadi. The order passed was assailed through
Civil Appeal No.87 of 2007 before the Majlis -e-Shoora, Khuzdar , which was allowed
vide order dated 14th February, 2007 on the ground that the application was found vague,
besides the judgment -debtor No.2 i.e. Haji Muhammad Hassan had expired and the legal
heirs of deceased/judgment -debtor were not made party and appl ication was made against
a dead person. The learned Majlis -e-Shoora, Khuzdar while accepting the Appeal No.87
of 2007 set aside the order dated 11th December, 2006, however respondents were set at
liberty to file fresh execution application. This judgment of Majlis -e-Shoora was not
challenged by either of the parties. The respondents filed execution Application No. 8 of
2007, whereupon the respondents were directed to file rejoinder to the same. The
petitioners while filing replication took an objection upo n the maintainability of
application on the ground that the judgment -debtors have already furnished non -
interference surety, therefore; the application is misconceived. The trial Court after
hearing the parties passed the following orders: --
5. Petitione rs feeling dissatisfied with the order dated 21st June, 2007 filed Civil
Appeal No. 46 of 2007, which was dismissed vide order dated 30th August, 2007. Feeling
aggrieved with the order so passed, instant revision petition has been filed.
6. On 30th April, 2008 while admitting the petition, following order was passed: --
"Learned counsel for the petitioners submits that learned trial Court in execution
of the decree in violation of the provisions of Order XXI, Rule 32(5), C.P.C. has
directed the petitioners to submit surety, whereas; no such directions could be
made in execution of the decree restraining the defendants from interference in the
water channel.
Contentions so raised require consideration.
Admit. Notice."
7. The learned counsel for the petition ers submitted that the orders impugned herein
are contrary to law, therefore, are liable to be set aside. It was contended that the
executing Court did not conduct inquiry but on mere allegations the impugned orders
have been passed. It was submitted that the lands of the petitioners are irrigated from the
water channel in question and are required to be irrigated prior to the lands of the
respondents. It was urged with vehemence that the petitioners have already submitted
surety in the sum of Rs.100,000, t herefore no further surety is required to be furnished, as
the petitioners have not violated the decree so passed against them.
On the other hand, the learned counsel for the respondents opposed the arguments
so advanced. It was contended with vehemence t hat all the respondents are being
deprived of the fruit of decree passed in their favour in the year, 1982. Moreover, the
undertaking given by the petitioners in this Court is also being violated, which renders the
respondents to be proceeded with for the contempt of this Court. The learned counsel for
the respondents maintained that the decree passed in favour of respondents is prohibitory
in nature and each and every breach provides a fresh cause for filing application. The
learned counsel urged that the petitioners although claimed before the appellate Court that
they have furnished surety in the sum of Rs.100,000 for non -interference, but they failed
to produce the copy of surety bond, therefore; the trial Court as well as the appellate
Court have rightl y observed that the petitioners should furnish surety in the sum of
Rs.50,000 for non -interference in water channel.
8. I have heard learned counsel for the parties and have gone through the available
record. The perusal of record reflects that the petitio ners have failed to procure the copy
of the bond, whereby the surety for non -interference in the sum of Rs.100,000 was
furnished. Secondly it is inferred that the surety in the sum of Rs.100.000 has been
furnished, the same was not forfeited perhaps for tw o reasons. No.1 the non -availability
of bond so furnished No.2 while giving undertaking before this Court, the bond has lost
its importance and efficacy. Record reveals that the decree passed in favour of
predecessor -in-interest of respondents is prohibito ry in nature. The petitioners were
restrained from interference in the water channel Shandi Nadi. It appears that interference
with water channel subsisted and the respondents filed the successive application,
whereupon the executing Court categorically ob served that the petitioners are interfering
with the water channel. The contents of instant petition lead to irresistible conclusion that
the petitioners are bent upon to interfere with the water channel in question. For ready
reference grounds 'B' and C o f instant petition are relevant to be reproduced as under: --
(B) That the impugned orders have been passed without any inquiry or site inspection
merely upon allegations of respondents, which has warranted grave miscarriage of
justice, because the lands of petitioners are before the lands of respondents and the
natural flow of water irrigates the lands of petitioners, and through impugned
order petitioners have been deprived from, irrigation of their lands.
(C) That he petitioners have already submitted sur ety in the sum of Rs.100,000, thus
further surety was uncalled for."
10(sic). It is not understandable that vide Paras (supra), the petitioners seek irrigation
of their lands through the said water channel, whereas in ground 'C' of grounds of the
petition, the petitioners have claimed to have furnished the surety in sum of Rs.100,000.
Such contradictory and self -destructive stance on the part of petitioners is quite strange
and painful. It seems that neither the petitioners are ready to honour the decree pa ssed in
the year, 1982 in favour of respondents nor they have any grace for the undertaking given
by them before this Court. On one pretext or the other, the respondents are being deprived
of the fruits of the decree and undertaking. As rightly observed by the Privy Council that
the difficulties of a litigant in sub -continent arise when a decree is passed in his favour.
The same proposition applies with full force to the facts of this case. Respondents cannot
be allowed to violate the terms of decree nor th ey can be permitted to disobey and
dishonour the undertaking given by them before this Court.
Each and every interference with the water channel Shandi Nadi amounts to
breach of the bond and provides a genuine ground for forfeiture of the same. As, it is a
recurring cause, the decree -holders have the right to ask for fresh surety, if the already
one stands liable to be forfeited provided the decree holders prove the violation thereof.
In such view of the matter, the Courts below have committed no irregular ity while
passing the impugned orders. There is no mis -exercise of jurisdiction by the lower forums
calling for interference by this Court.
For the foregoing reasons, the instant petition is dismissed with costs throughout.
S.A.K./90/Q Revision dismissed .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,
let us know.