P L D 2019 Balochistan 1
Before Abdullah Baloch, J
THE BASE COMMANDER PAKISTAN AIR FORCE, P.A.F. BASE, QUETTA
and others ---Petitioners
versus
PROVINCIAL GOVERNMENT through Member Board of Revenue Balochistan
and 4 others ---Respondents
Civil Revisions Nos. 33 and 37 of 2016, decided on 25th September, 2018.
Civil Procedure Code (V of 1908) ---
----S. 96--- Constitution of Pakistan, Art. 10- A---Sui t for declaration and permanent
injunction---Appeal was accepted without service of respondent ---Effect ---Audi alteram
partem, principle of ---Applicability ---Notice issued to the respondent was received back
unserved and he was proceeded ex -parte and appeal was allowed ---Validity ---Only one
notice was issued for service of respondent in the appeal ---Service of respondent was not
properly effected by the Appellate Court ---Appellate Court did not repeat the process and
adopt the other available mode of servic e to get effected the service of notice upon the
respondent ---Respondent was condemned unheard in the appeal by the Appellate Court ---
No one was to be condemned unheard---Impugned judgment and decree passed by the
Appellate Court were set aside---Matter wa s remanded to the Appellate Court with the
direction to provide fair opportunity of hearing to the parties and thereafter decide the appeal on its own merits in accordance with law ---Revision was allowed, in
circumstances.
Lal Guradia Group of Companies t hrough Assistant Manager Terminal v. Abdul
Nafey 2015 CLC 620 rel.
Zahid Malik for Petiitioners (in C.R.No.33 of 2016).
Ahmed Ali Baloch, Additional A.G. (in C.R.No.37 of 2016)
Shams -ud-Din Achakzai for Respondent No.6
Date of hearing: 13th September, 2018.
JUDGMENT
ABDULLAH BALOCH, J. --This common judgment disposes of Civil Revision
Petition No.33/2016 and Civil Revision Petition No.37/2016.
The Civil Revision Petition No.33/2016 has been filed by the Base Commander
Pakistan Air Force (PAF Base) Sam ungli Road Quetta, while the Civil Revision Petition
No.37 of 2016 has been filed by the Government of Balochistan through MBR, against
the judgement and decree dated 16th November 2015 (hereinafter, "the impugned judgment and decree") passed by learned Ad ditional District Judge -VI Quetta
(hereinafter, "the appellate Court"), whereby the appeal filed by the private respondents Nos.6 to 27 has been accepted and the suit was decreed and the judgment and decree dated 8th October 2015 passed by the lealned Seni or Civil Judge -I Quetta (hereinafter,
"the trial Court), has been set -aside.
2. Brief facts of the instant petitions are that the respondents Nos.6 to 27 filed a suit
for declaration and permanent injunction in the trial Court, with the averments that they
are residents of Aghbarg district Quetta comprising of differeni villages. The said villages are in the names of different subsections of Kakar Bazai tribe and the same belongs to Bazai tribe, who are dwelling there since their forefathers. The private respondents being Bazai tribe and have ancestral properties being utilized by them since their forefathers.
The private respondents and other residents of the said villages have their settled
properties and it is settled law in the area as well as customary law everywhere in the
province of Balochistan that the property which is unsettled but fall adjacent to the settled property belongs to owner of persons having settled property.
It was further averred in the plaint that the background and reason of land o f
different owners being left over without settlement was that before partition, the then British Government entered in it's name the property required by it and presumption after about the left -over property was that same belongs to adjoining lands owner of the settled
property. The private respondents are in peaceful possession, they have their orchards, fruit bearing trees, grapes orchards, rig borings, water supply schemes and water
reservoirs and they have also constructed houses since the time of immemorial and are enjoying their properties according to their respective shares, while the Goverament of Balochistan has constructed two delay action dams with expenditure of a huge amount for irrigation purposes for the unsettled property of the private, re spondents and other
shareholders of the area, but the petitioner in Civil Revision No.33/2016 i.e. Commander PAF Samungli Base started harassing the private respondents on the pretext that it is firing range of the petitioner therefore they have to vacate the same and to hand over the possession to the petitioner.
3. The suit of the private respondents was contested by the petitioners in both the
petitions i.e. Commander PAF Base Samungli and the Government of Balochistan through MBR by means of filing writ ten statements, whereby they raised legal objections
on maintainability of the suit as well as denied the claim of the private respondents.
4. Out of pleadings of the parties, the learned trial Court framed as many as
following issues:
1. Whether the suit is not maintainable in view of legal objection "B" of written
statement of defendant No.1 and legal objection "C" of written statement of defendants Nos.3, 4 and 5?
2. Whether the plaintiffs are in occupation of the disputed lands?
3. Whether the plai ntiffs is entitled to the relief claimed for?
4. Relief?
Addition issues:
i. Whether the suit is barred by time?
ii Whether the suit is bad for misjoinder and non- joinder of necessary parties, if so to
what effect?
iii. Whether the suit land is firing ran ge of defendant No.2?
iv. Whether the plaintiffs are lawful and actual owners of the suit property, or who is
the actual owner of the suit property?
5. Thereafter the parties produced their relevant evidence and after, hearing the
parties, the learned tria l Court dismissed the suit of private respondents, vide judgement
and decree dated 31st March 2015. Feeling aggrieved, the private respondents/plaintiffs
filed an appeal before the learned Additional District Judge -VI Quetta, which was
accepted and the cas e was remanded to the trial Court, vide judgement and decree dated
30th June, 2015 and after remand of case, the learned trial Court once again dismissed the
suit of the private respondents/plaintiffs, vide judgment and decree dated 8th October 2015. Being aggrieved, the private respondents filed an appeal under Section 96 C.P.C. in
the appellate Court, who after registration of appeal issued notices to all the respondents including the present petitioner in Civil Revision Petition No.33 of 2016 i.e. Base Commander, Pakistan Air Force, Base Samungli Road Quetta, but the same was received
back unserved with the report of Process Server that he was not allowed to enter in the area of Force premises. The petitioner in Civil Revision Petition No.33/2016 was
proceeded against ex parte, while after hearing the rest of the parties, the appeal was
accepted, and the suit of private respondents was decreed, vide judgment and decree dated 16th November 2015. Whereafter, both the petitioners i.e. Commander PAF Base Samun gli filed Civil Revision Petition No.33 of 2016 and the Government of Balochistan
through MBR filed Civil Revision No.37 of 2016.
6. Learned counsel for petitioner in Civil Revision Petition No.33 of 2016 mainly
contended that they have been condemned unhe ard without affording opportunity of
being heard by the appellate forum; that the main area of the suit land is in possession of the petitioner being their firing range, as such, valuable rights of the Pakistan Air Force are involved in the suit land and w ithout affording proper opportunity and fair trial,
serious prejudice has been caused to the petitioner and the entire Firing Range being effected; that the service of notice was not properly effected upon the petitioner and no further mode of service was adopted by the appellate Court for service of notices, under such circumstances, the petitioners cannot be proceeded against ex parte on such a vague report of process server. He prayed for remand of the case and providing an opportunity of fair trial.
7. The learned Additional A.G. contended that the suit land is unsettled land and
belongs to the Government of Balochistan and the Government of Balochistan has made so many projects, buildings, delay action damages over the suit land and also the most of the suit land is firing range of the Pakistan Air Force; that the report of Local
Commissioner was also not taken into consideration by the learned appellate Court, wherein he has categorically reported that the private respondents have no locus standi to
occupy the suit property; that the appellate Court has also failed to decide the issues in
the light of evidence brought on record by the parties and has also failed to dilate upon the matter as per provisions of Order XLI, Rule 31 C.P.C. hence the judgment a nd decree
passed by the appellate Court suffers from misreading, non- reading and misappreciation
of evidence and committed material illegality and irregularity by setting aside the judgment and decree passed by the trial Court, whereby the suit of private respondents was dismissed. Even otherwise no fair opportunity was provided to the petitioner to defend the case in the appellate forum, which is sheer violation of Article 10- A of the
Constitution of Islamic Republic of Pakistan, 1973.
8. Conversely, the l earned counsel for private respondents vehemently opposed the
arguments so advanced by the learned counsel for petitioners and contended that the petitioners were provided fair opportunity at trial stage and even in the appellate forum to rebut the Case of private respondents/plaintiffs, but they have failed to counter the
version of the private respondents; that the plaintiffs/private respondents through
confidence inspiring evidence proved their case, but the learned trial Court was failed to
consider the evidence brought on record by the private respondents/plaintiffs and the
appellate Court after proper appreciation of evidence had rightly decreed the suit of
private respondents/plaintiffs; that the judgment and decree passed by the learned
appellate Cou rt does not suffer from any material illegality or irregularity or suffers from
any misreading and non -reading of evidence, hence not open for interference by this
Court.
9. Heard the learned counsel for parties and perused the record, which reveals that
the private respondents/plaintiffs filed a suit for declaration and permanent injunction
against the present petitioners with the averments that they are permanent residents of the area comprising of different villages and the said villages are in the different names of subsections of Kakar -Bazai tribe and they are dwelling there since their forefathers
having ancestral properties, orchard and water borings, though the same are unsettled, but as per customary law the adjacent property to the un -settled adjacent property would be
presumed to be the ancestral property of the people of the area and has forcibly been occupied by the petitioner i.e. Base Commander PAF Base as their firing range and now the official respondents including present petitioner of Civil Revision No.37 of 2016
issued notices to the private respondents/plaintiffs to vacate the possession of the suit land, which resulted to miscarriage of justice to the private respondents/plaintiffs. The parties with regard to their claims produced their r elevant evidence in the trial Court and
the case was decided for twice by the learned trial Court, whereby the suit of private respondents/plaintiffs was dismissed. However, it is transpired from the record that after remand of the case the trial Court onc e again while dismissing the suit of the private
respondents/plaintiffs vide judgement and decree dated 8th October 2015 in the second round of appeal before the appellate Court notices issued to the present petitioners, which reflects that the notice was issued to the petitioner i.e. Commander PAF Base in on 10th
October 2015, while the case was fixed for 15th October 2015. On the said date case was taken -up. The back side of the notice the report of process server showing that:
Further the original record of appellate Court was also called and perused, which reflects
that on 10th October 2015 the above notice was issued, but the service thereof was not properly effected upon the petitioner in Civil Revision Petition No.33/2016, however, the case was adjour ned to 15th October 2015, but the order sheet dated 10th October 2015
reflects that on such date no further notice was issued for the petitioner in Civil Revision
No.33 af 2016 (respondent No.2 in the appeal), however in the interest of justice another
opportunity was afforded to the petitioner and the case was adjourned for 28th October 2015 and vide order dated 28th October 2015 it is mentioned that the petitioner "despite service of notice remained absent", hence proceeded against ex parte on 28th Octobe r
2015, but in fact except the notice Dated 10th October 2015, which was not properly served upon the respondent No.2 (petitioner in Civil Revision Petition No.33 of 2016) no further notice is available on record to have been issued to the respondent No.2. Which
reflects that the appellate Court has failed to issue notice in pursuance of order sheet dated 15th October 2015. Thus, prima -facie it reflects that the learned appellate Court did
not bother to repeat the process and also to adopt the other availab le mode of service to
get effect the service of notice upon the petitioner/respondent No.2 and without recording the reasons, proceeded petitioner against ex parte.
9. In view of the above, without touching the merits of the case it prima -facie
appears that the service was not properly effected upon the petitioner in Civil Revision
Petition No.33/2016 and no further notice was issued by the appellate Court except the
notice dated 10th October 2015, hence they have been condemned unheard, is sheer violation of Article 10 -A of the Constitution of Islamic Republic of Pakistan 1973. The
same is reproduced, as under:
"[10-A. Righ to fair trial. -- For the determination of his civil rights and obligations
or in any criminal charge against him a person shall be entitled to a fair trial and due process.] "
Reliance in this regard is also placed on the case of Lal Guradia Group of
Companies through Assistant Manager Terminal v. Abdul Nafey, 2015 CLC 620
(Balochistan). The relevant portion is reproduced hereinbelow :
" ...The manner and procedure adopted by the learned trial court was a clear departure from the prevailing law, when the procedure for substituted service as laid down in Order V, Rule 20, C.P.C. was not adopted in letter and spirit. The learned trial c ourt was under legal obligation that when notices could not be
served through ordinary mode of service on given addresses of the appellant then alternative and substitute mode of service was required to be adopted. However, service on agent can be consider ed effective when it fulfils the stipulation
contained in Rule 12 of Order V, C.P.C. which being relevant is reproduced hereunder: -
"12. Service to be on defendant in person when practicable or on his agent.---Whenever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient."
Admittedly the person namely Ejaz, who was shown to be the
watchman of the appellant was neither empowe red nor
shown to have been in employment of the appellant then the learned trial court, was
under legal obligation to adopt the procedure as laid down in Rule 20 of Order V, C.P. C., which stipulates that:
"Substitute service. --- (1) Where the Court is sa tisfied that there is reason to
believe that the defendant is keeping out of the way for the purpose of avoiding
service, or that for any other reason the summons cannot be served in the ordinary
way, the Court shall order for service of summons by --
(a) affixing a copy of the summons at some conspicuous part of the house, if any,
in which the defendant is known to have last resided or carried on business or personally worked for gain; or
(b) any electronic device of communication which may include telegr am,
telephone, phonogram, telex, fax, radio and television or
(c) urgent mail service or public courier services or
(d) beat of drum in the locality where the defendant resides; or
(e) publication in press; or
(f) any other manner or mode as it may thi nk fit.
Provided that the Court may order the use of all or any of the aforesaid manners and modes of service,
(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service subs tituted time for appearance to be fixed. Where service is
substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require [which shall not ordinarily exceed fifteen days.]"
The question of prope r service is of significant importance in the instant case.
Where the defendant/respondent evades service or cannot be served in the ordinary way or refused to accept service or has not been heard for a long time and the service cannot be effected in the o rdinary manner the court shall order that he be
served through substituted mode of service under the provision supra. Admittedly in the instant case the learned trial court did not bother to adhere the mandatory provision of law and wrongly placed reliance on service stated to have been
affected upon a person namely Ejaz, whose status being an authorized agent was neither established nor recognized by the appellant. Therefore, service in the instant case was not properly affected and the learned trial court was under legal
obligation to adopt the other modes of service."
10. In view of the above provisions of the Constitution of Islamic Republic of
Pakistan and the dictum laid down by the Hon'ble Supreme Court of Pakistan in various judgments that no one can be condemned unheard "Audi Alteram Partem".
11. For the reasons discussed hereinabove, the petitions are partly allowed and the
impugned judgment and decree dated 16th November 2015 passed by the learned Additional District Judge -VI Quetta is hereby se t-aside and the matter is remanded to the
appellate Court with the directions to provide full and fair opportunity of hearing to the parties and thereafter decide the case on its own merits in accordance with law, considering all the documentary as well as oral evidence reports and available revenue
record. The parties to bear their own costs.
ZC/74/Bal. Case remandeThis 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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