P L D 2013 Balochistan 52
Before Muhammad N oor Meskanzai and Muhammad Hashim Khan Kakar, JJ
REHMATULLAH and others ---Petitioners
Versus
A. HAMEEDULLAH and others ---Respondents
Civil Revisions Nos. 453 of 2007, 338 of 2008 and Constitutional Petitions Nos.455, 538 of
2009, decided on 24th Oc tober, 2012.
(a) Civil Procedure Code (V of 1908) ---
----S. 79 ---Specific Relief Act (I of 1877) Ss. 42 & 54 ---Suit by or against the government or
public officers in their official capacity ---Non-impleadment of government as party in such
case---Effec t---Suit for declaration and permanent injunction contending inter alia that the
plaintiffs' forefathers were co -sharers in suit land; that they were "lathband bazgards" of the
Provincial Government over part of suit land and sought to restrain defendants from
interfering with their possession of the suit land ---Suit was decreed by Trial Court ---
Contention of the defendants was that suit was not competent in terms of S.79, C.P.C. since
suit property was vested with the Provincial Government, which was not i mpleaded by the
plaintiffs as defendants in the suit ---Validity ---Perusal of record revealed that suit property
vested with the Provincial Government and the defendants had raised such objection before
the Trial Court upon which an issue was fram ed---Findings of the Trial Court on said
issue were illegal and perverse as in a case where subject matter of a suit was immovable
property and the same vested with or was claimed by the Government, in such like cases,
Member Board of Revenue through its S ecretary was a necessary party ---In case of non -
impleadment of the Government in the suit, the suit would be incompetent and non -
maintainable ---High Court set aside the decree of Trial Court and dismissed suit filed by the
plaintiffs, with the observation that plaintiffs were at liberty to file fresh suit subject to all just
exceptions ---Revision was allowed, accordingly.
Government of Balochistan, CWPP & H Department and others v. Nawabzada Mir
Tariq Khan Magsi 2010 SCMR 115 rel.
(b) Contempt of Co urt Ordinance (V of 2003) ---
----S. 12 ---Civil contempt ---Contempt proceedings initiated on basis of a decree which itself
was a nullity, must be set aside.
(c) Contempt of Court Ordinance (V of 2003) ---
----Ss. 5 & 12 ---Conviction for civil contemp t recorded by Trial Court in the light of a decree
in a civil suit ---Validity ---Under S.5 of the Contempt of Court Ordinance, 2003 only the High
Court and the Supreme Court could proceed with the matter and record conviction if the case
of contempt was mad e out ---Trial Court, in the present case, should have made a reference to
the High Court after entertainment of the contempt application but instead of adopting the
legal course, the Trial court proceeded with the matter and recorded conviction, which was a
course that was in utter disregard to the relevant law and the entire proceedings were
therefore, void ab inito and coram nonjudice.
Yasir Arfat v. Vice -Chancellor, Mehran University 2000 CLC 387 rel.
Adnan Ejaz for Petitioners (in Civil Revision No.453 of 2007).
Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in Civil
Revision No.453 of 2007).
Adnan Ejaz for Petitioners (in Civil Revision No.338 of 2008).
Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Resp ondents (in Civil
Revision No.338 of 2008).
Adnan Ejaz for Petitioners (in Civil Revision No.455 of 2009).
Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in Civil
Revision No.455 of 2009).
Adnan Ejaz for Petitioners (in Civi l Revision No.538 of 2009).
Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in Civil
Revision No.538 of 2009).
Date of hearing: 17th October, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Through this common judgment we
propose to decide Constitutional Petitions Nos.455, 538 of 2009, Civil Revision Petitions
Nos. 453 of 2007 and 338 of 2008, as common question of law and facts are involved therein.
Facts of Civil Revision No.453 of 2007.
2. Facts relevant for the disp osal of instant petition are that the respondents filed a suit
for declaration and permanent injunction against petitioners in the Court of Qazi Bori/Sanjavi
at Loralai. It was averred in the suit that the plaintiffs have landed property in Mouza 'Narai
Dag' Sub -Tehsil Sinjavi and since their forefathers they are share holders in said land. It was
further averred in the suit that plaintiffs are 'Lathband Bazgars' of Government of Balochistan
over land bearing Khasra No.1203 up to 1260. According to plaintif fs most of the share
holders are irrigating their lands through rainy water channel known as 'Wah' since last 25
years. It was case of the plaintiffs that petitioners/ defendants are interfering in the said water
channel by way of stopping the water and ch anging its direction towards their land.
3. The suit was contested by the defendants/petitioners by way of filing written
statement, whereby besides raising certain preliminary legal objections, claim of
plaintiffs/respondents was repudiated on merits.
4. The learned trial Court, out of the pleadings of parties framed following issues: --
5. Thereafter the parties were directed to adduce evidence in support of their respective
claims. The plaintiffs produced two P.Ws. and got recorded statement of thei r attorney. In
rebuttal, the defendants examined five D.Ws. and petitioner No.1 (for himself as well as
attorney for other defendants) entered in the witness box.
6. The learned trial Court after hearing the parties and evaluating the evidence decreed
the suit vide judgment and decree dated 12th June, 2007. The petitioners challenged the
above referred judgment and decree before the learned Majlis -e-Shoora, Loralai by way of
filing appeal, which too met with the same fate, hence instant revision petition.
Facts of Civil Revision No.338 of 2008
7. The respondents filed contempt application against petitioners on the ground that in
violation of judgment/decree dated 12th June, 2007 passed by Qazi Sanjavi/Bori at Loralai,
they plied tractor in the land r endering themselves liable to be prosecuted under the Contempt
of Court Act. The petitioner No.2 filed his rejoinder to contempt application, however, rest of
the respondents in contempt application were proceeding against ex parte.
8. The learned trial Court framed following point for determination:
9. The applicants (in contempt application) in support of the accusation produced three
A.Ws. and applicant No.2 himself appeared in the witness box. Whereas, in rebuttal
respondents examined R.W.1 Muhammad Shah, R.W.2 Zahir Shah, and respondent No.2
Syed Noor entered in the witness box.
10. The learned Qazi vide order dated 31st May, 2008 came to the conclusion that the
decree has not been violated, as such, dismissed the contempt application. The respond ent
No.1 feeling aggrieved of the above referred order preferred an appeal before the Majlis -e-
Shoora, Loralai. The learned Majlis -e-Shoora vide order dated 24th September, 2008
accepted the appeal and set aside the order dated 31st May, 2008 passed by Qaz i Bori/Sanjavi
at Loralai and remanded the case to the trial Court with direction to reconsider the evidence
produced by the parties. The parties be provided opportunity to lead further evidence if they
desire so, thereafter to decide the matter in accorda nce with law, hence, instant revision
petition.
Facts of C.Ps. Nos.455 and 538 of 2009
11. The case of the petitioners is that feeling aggrieved of the order dated 24th September,
2008 passed by the learned Majlis -e-Shoora, Loralai whereby petitioner was/were found
guilty of Contempt of Court Act and sentenced them to five month, they filed Civil Revision
Petition No.338 of 2008 accompanied by C.M.A. No.1353 of 2008 before this Court. This
Court vide order dated 21st November, 2008 was pleased to suspe nd the impugned order
passed by the Majlis -e-Shoora, Loralai. The order passed by this Court was placed before
learned Qazi Bori/Sanjavi, but the learned Qazi did not take into consideration the order
passed by this Court and vide order dated 12th November , 2008 sentenced the petitioners
under Contempt of Court Ordinance for five months. The petitioners assailed the latter order
by way of filing appeal before the learned Majlis -e-Shoora, Loralai. The learned Majlis -e-
Shoora vide order dated 30th December, 2 008 dismissed the appeal filed by petitioners,
hence, instant Constitutional petitions.
12. Learned counsel for the petitioners contended with vehemence that the learned trial
Court as well as appellate Court committed material irregularity in decreeing the suit and
dismissing the appeal filed by the petitioners. It was next contended that there was no
material whatsoever on record to justify the drawing of a decree. It was strenuously urged
that the suit was not competent as, in fact the property in ques tion vests in the Government
and a specific plea to such effect was raised by petitioners in their written statement. The
learned trial Court though framed issue No.1 in this regard, yet failed to dilate upon
'the issue with reference to reasons based on law. Similarly, contempt proceedings initiated
by the trial Court followed by conviction are not sustainable for want of jurisdiction. The
trial Court was not competent to initiate contempt -proceedings and the appellate Court
failed to t ake legal notice of this fact. The learned counsel for the petitioners prayed for
acceptance of Civil revisions and as well as Constitutional petitions.
On the other hand learned counsel for the respondents while controverting the
arguments so forwarded by the learned counsel for petitioners vehemently opposed the
submissions. Learned counsel for the respondents submitted that the trial Court was quite
competent to proceed with the matter and similarly on violation of orders passed by t he
trial Court the petitioners were liable to be prosecuted through the process of contempt
proceedings, as such were rightly sentenced.
13. We have considered the contentions so advanced by the learned counsel for the
parties and perused the available r ecord. A conscious application of judicial mind would lead
to an irresistible conclusion that the Civil Revision Petition No. 453 of 2007, must succeed on
the sole ground of incompetency of Civil Suit No.25 of 2006. Perusal of record reflects that
admitted ly, the property in question vests in the Government of Balochistan. For ready
reference para No.2 of the plaint is reproduced: --
Similarly, the respondents raised objection upon the maintainability of suit on such
ground and the trial Court framed issu e No.1. For the sake of convenience the same is
reproduced:
14. No doubt; the trial Court dealt with this issue mechanically and, thus, the findings so
arrived at qua issue No.1 are absolutely illegal, perverse and contrary to the norms of natural
justic e, this point itself is sufficient enough to decide the fate of all four cases. During the
course of arguments when the learned counsel for the respondents/plaintiffs was confronted
with this legal aspect of the case, he tried to justify the findings but f ailed to satisfy the Court
and ultimately conceded that the suit in present form was not competent. Even otherwise, the
law on the subject stands settled that in the case where the subject matter is immoveable
property and the same vests or is claimed by t he Government, in such like cases, the MBR
through its Secretary is a necessary party. In case of non -impleadment of the government in
the suit/proceeding as party, the suit so filed and the proceedings so carried out are
incompetent and non -maintainable. By holding the view, we are fortified by the judgment
reported in 2010 SCMR 115 (Government of Balochistan, CWPP & H Department and others
v. Nawabzada Mir Tariq Khan Magsi relevant at page 119), wherein it has been held as
under: --
"The above reproduced section has been couched in a simple and plain language and
there is hardly any need .for its scholarly interpretation and it simply provides that a
suit instituted against Government, the authority to be named as defendant would be
Federal Government of Pakistan or Province concerned as the case may be. No suit
can be filed against Provincial Government without impleading the Province as a
party and the procedural precondition is mandatory in nature and no relief can
be sought without its strict compliance and such suit would not be maintainable."
In the light of above discussion, we feel no hesitation in holding that Civil Suit No.25
of 2006 was incompetently filed, therefore, the judgment and decree dated 12th June, 2007
passed by the learned Qazi Bori Sanjavi and upheld by Majlis -e-Shoora are hereby set aside
and the suit filed by the plaintiffs/respondents is dismissed. However; the respondent/plaintiff
is at liberty to file a fresh suit subject to all just exceptions.
15. As discussed hereinabove, the judgment and decree referred to herein above being
nullity in the eye of law has been set aside. Similarly, on the same analogy the contempt
proceedings, which conceived Constitutional Petitions Nos. 455, 538 o f 2009 and Civil
Revision No. 338 of 2008, being nullity must culminate in acceptance of petitions for a
variety of reasons. Firstly, the contempt proceedings were initiated on the basis of a
decree which itself was a nullity. Second ly, the Court of Qazi was not competent to
initiate the contempt proceedings which resulted in conviction of petitioners. Learned Qazi
has recorded conviction under section 5 of Contempt of Court Ordinance, 2003 whereas
under section 5, the High C ourt and Supreme Court can proceed with the matter and record
conviction if case is made out. The Qazi was required to have had made a reference to the
High Court after entertainment of contempt application but instead of adopting the legal
course, the learned Qazi himself proceeded with the matter and recorded the conviction. The
course adopted by the learned Qazi is in utter disregard and flagrant violation of
relevant law, therefore, the whole proceedings are ab initio void. By hold ing the view we
are fortified by the dictum laid down in the judgment titled as Yasir Arfat v. Vice -
Chancellor, Mehran University reported in 2000 CLC page 387 (relevant at page 393).
Relevant observations therefrom are reproduced herein below: --
"It is manifestly clear from the provisions of section 3 and subsection (4) of section
5 of Contempt of Court Act and section 228, P.P.C. that the Subordinate Courts
could punish for contempt of Court only where the contempt was committe d in
the face of the Court or its orders were disobeyed or disrespected".
16. In the instant case neither the contempt was committed in the face of the Court nor its
orders were disobeyed or disrespected, therefore, we are of the considered opinion that the
entire proceedings conducted by the trial Court under Contempt of Court Act were corum non
judice.
Resultantly we accept all the petitions, set aside the order dated 12th November, 2008
passed by learned Qazi Bori Sanjavi, in contempt proceedings an d quash the whole
proceedings conducted by the lower forums. The contempt application filed by the
respondents/applicants is hereby dismissed.
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