2018 Y L R Note 276
[Balochistan]
Before Abdullah Baloch, J
QUETTA METROPOLITAN CORPORATION through Administrator (Successor
of Administrator of Chiltan Town), Quetta ---Petitioner
Versus
ABDUL MALIK and 39 others ---Respondents
Civil Revision No.542 of 2010, decided on 20th March, 2018.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54--- Suit for declaration and permanent injunction--- Plaintiffs filed suit that
they were owners of cabins and paying taxes regularly ---Suit was decreed due to
admission of claim by the Tehsil Municipal Administration made through written statement without framing of issues and recording of evidence ---Validity ---Nothing was
on record with regard to permission for installation of cabins in favour of plaintiffs by the
Municipal Committee or any competent authority ---Tehsil Municipal Administration was
in league with the plaintiffs ---Proceedings were not properly defended by the opposite
party ---Suit was decreed on mere admission of Tehsil Municipal Administration without
adherin g and adverting to the root cause of the case being of public importance ---
Impugned judgments and decrees suffered from mis -reading and non -reading of evidence
which were set aside--- Case was remanded to the Trial Court with the direction to provide
fair o pportunity to the parties to file their relevant written statements, frame issues and
after recording evidence decide the same--- Revision was allowed accordingly. [Paras. 13,
14, 15, 17, 19 & 24 of the judgment]
Iqbal Shah for Petitioner.
Waseem Khan Jad oon for Respondents.
Ms. Sabira Islam, A.A.G. for the State.
Date of hearing: 28th February, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---The Civil Revision Petition is directed against the
judgment and decree dated 13th March 2010 (hereinafter referred as, "im pugned
judgment and decree") passed by the learned Civil Judge -IV, Quetta (hereinafter referred
as, "the trial Court"), whereby the suit filed by the private respondent was decreed and
judgment and decree dated 29th October, 2010 passed by the learned Addi tional District
Judge -V, Quetta (hereinafter referred as, "the Appellate Court"), whereby appeal filed by
the petitioners was dismissed.
2. Brief facts arising from the instant petition are that the private respondents Nos.1
to 38 filed a suit for declaration, permanent injunction and consequential relief in the Court of Civil Judge -IV, Quetta with the averments that they are owner of
cabins/Khokhas located near the office of Pak P.W.D/old A.G. Office, Burma Hotel
Sariab Road, Quetta and earning their livel ihood from the said cabins.
3. It is further averred from the plaint that they had installed their Khokhas and
cabins in the year 1984/85 with the permission of defunct Quetta Municipal Corporation
and started paying of taxes till date through National Bank of Pakistan in account A/C
No.4394- 7 in favour of defendant No.2.
4. It is further submitted by the plaintiffs/private respondents that in the year 2006
the cabins/khokhas were damaged/burnt after the assassination of Nawab Muhammad
Akbar Khan Bugti by t he participants of processions/miscreants. On demand of
respondents/plaintiffs, a high power meeting was held under the Chairmanship of Chief
Minister of Balochistan on 30th August, 2006, where certain demands of citizens and respondents/plaintiffs were co nsidered, according to clause 6, the owners of destroyed/
burnt Khokhas were allowed to reinstall their Khokhas keeping in view, there would be not encroachment and Khokhas would be placed in original places i.e. near A.G Office and Pak P.W.D. Colony, the Nazim City District Government Quetta addressed letter No.CDGQ/PS/30 dated 05111 September, 2006 to Muhammad Yaseen Mengal, President, Anjuman -e-Tajiran Sariab Quetta.
5. It is added by the respondents/ plaintiffs that on abolition of system of local
admin istration headed by the Nazims in respective areas, the plaintiffs have been called
upon to remove their cabins/ khokhas immediately, otherwise the same would be removed by force without issuing any show cause notice or letter by the defendant No.1, hence filed the instant suit for restraining the defendants for taking any action against the
plaintiffs.
6. The suit was contested by the defendant No.1 i.e. T.M.O Chiltan Town, Quetta by
means of filing written statement, wherein categorically admitted the cla im of the
plaintiffs/private respondents, while the defendant No.2 was proceeded against ex parte.
7. After hearing the parties without framing issues and recording evidence, the
learned trial Court decreed the suit of private respondents/plaintiffs vide i mpugned
judgments and decrees as mentioned above in Para. No.1.
8. Being aggrieved, the defendant No.2 i.e. Chiltan Town through its Administrator
filed an appeal under section 96 of C.P.C. in the Court of Additional District Judge -V.
Quetta which was also contested by the private respondents/plaintiffs, after hearing the
parties the appeal was dismissed vide impugned judgment and decree dated 29th October,
2010, hence this petition filed by the petitioner i.e. Quetta Metropolitan Corporation.
9. The learned counsel for the petitioner contended that the judgments and decrees
passed by the Courts below suffers from misreading, non- reading and misappreciation of
law; that both the Courts below have failed to frame issue and record evidence, as such
the p etitioner was condemned unheard without affording opportunity of defence; that the
private respondents were in league with the then T.M.O. and managed the same just to obtain a decree behind the back of petitioners; that the written statement filed by the then T.M.O. on behalf of the former Chiltan Town was without lawful authority and no mandate was given to him to file such written statement and with mala fide intention he
has admitted the claim the private respondents; that infact there was no cabins/khokhas
were available in front of A.G. Pak PWD building and there is a footpath, which is being used as passage by the passerby's, but by the garb of impugned judgment and decrees, the private respondents are trying to usurp the footpath and encroach on the Sariab Road,
which is already narrow and close, because of heavy traffic and for the number of times
the traffic would become jam for hours; that the impugned judgments and decrees also
suffer from material illegalities and irregularities, which are not su stainable and liable to
be set aside.
10. Conversely, the learned counsel for the private respondents vehemently opposed
the arguments so advanced by the learned counsel for the petitioners and contended that
the private respondents are victims of the prot estors/miscreants and their cabins were
destroyed/ burnt by the protestors at the time of assassination of Nawab Muhammad
Akbar Khan Bugti in the year 2006, that the plaintiffs without any agitation and taking of law in their hands have legally approached the then Government for redressal of their
grievances and the then Chief Minister was pleased to constitute and convene meeting
and after proper inquiry and investigation the cases of plaintiffs were found genuine as such, they were allowed to reinstall th eir cabins on the said places without any
encroachment and the permission was granted by the then City Nazim and thereafter the plaintiffs reinstalled their cabins on the said places, but all of sudden due to change of
local bodies system in the year 2010, the plaintiffs were called to remove their cabins
illegally and unlawfully by the Municipal Administration; that the plaintiffs/ private
respondents produced sufficient documents in favour of their claims before the learned trial Court; that the claim of the plaintiffs was admitted by the defendants and the learned
trial Court after proper appreciation of documents has rightly decreed the suit in favour of the plaintiffs/private respondents and the appeal of the petitioner was rightly dismissed by the appe llate Court; that concurrent findings are in the field against the petitioner, which
are not open for interference by this Court.
11. Heard the learned counsel for the parties and perused the record minutely, which
reflects that the private respondents/ pl aintiffs had claim to be the authorized owner of the
cabins and khokhas located in front of A.G. Pak PWD building Burma Hotel Sariab Road,
Quetta and the same were destroyed and burnt by the protestors at the time of procession and protest against the assassination of Nawab Muhammad Akbar Khan Bugti in between
26 to 28 August, 2006.
12. It is further the claim of the plaintiffs that the permission was already obtained by
the plaintiffs for installation of cabins/khokhas from the office of Quetta Municipal
Corporation Committee in the year 1984/1985 and they had paid all taxes in favour of
Q.M.C. since 1984/ 1985 to 1995.
13. In support of their of claims they have annexed copies of certain deposit slips of
National Bank of Pakistan and certain copies of receipts issued by the Q.M.C. pertaining
to different dates and years mostly of 12th July 1985 and 15th July 1994 issued in the
name of different persons, but there is no N.O.C./ permission with regard to the
installation of cabins and khokhas are available in the record in support of their claims to
ascertain whether infact permission for installation of cabins/khokhas were granted in
favour of the respondents/ plaintiffs by the Municipal Committee/ the petitioner or any
competent authority.
14. The record fur ther reveals that the suit was contested only by the defendant No.1
i.e. T.M.O. Quetta (the then Chiltan Town Quetta), wherein the claim of plaintiffs/private respondents was fully admitted rather in reply of Para No.5 it was mentioned that: --
"5. That the cause of action has accrued to the plaintiffs against the defendants Nos.2 and 3 because the defendant No.3 removed the said cabins/khokhas of plaintiffs."
15. The such admission at the part of defendant No.1 not only showing that the
respondent No.1 was in league with the plaintiffs, but such admission in para No.5 of
written statements showing that the T.M.O. was more active from the respon-
dents/plaintiffs, like:
16. Because in their plaint nowhere it was mentioned by the plaintiffs that their
khokhas /cabins were removed by defendants, rather they had mentioned that:
"The cause of action accrued lastly a week back when defendant No.2 without any
justification called upon the plaintiffs for removing their cabins/khokhas and two days back advanced threats to the plaintiffs for forcibly removing the khokhas,
which cause of action subsist within jurisdiction of this Court."
17. As such, the learned counsel for the petitioner has rightly pointed out that the then
T.M.O. was in league with the plaintiffs for admission of their claims behind the back of
petitioner.
18. The next contention of learned counsel for petitioner was that the counsel
appeared on behalf of the defendant No.1 was also kept in dark by the defendant i.e.
T.M.O. Chiltan Town and he was not able to properly assist the Court, observations made
in impugned judgment reflects that:
"Notice of the same was given to defendants whereas defendant No.1 filed his
written statement in which he admitted the contents of suit. Mr. Naseer -ud-Din
Mengal Advocate appeared on behalf of defendant No.1 and contended that the
office of defendant No.2 is vacant as no such administrator has been appointed by Government of Balochistan so the charge of defendant No.2 is also with the
defendant No. 1. D efendant No.3 is also been proceeded with ex -parte."
19. In view of the above, the contention of learned counsel for petitioner having
weight that in all proceedings the rights of defendants were not properly defended.
20. Learned counsel for petitioner further contended that the letter No.CDGO/PS/13
dated 5th September, 2006 issued by the then City Nazim was relied upon by the private
respondents/ plaintiffs with regard to the permission of reinstall- burnt damaged khokhas
at Sariab Road adjacent Burma Hote l, Quetta was also tampered by the plaintiffs by
adding hand written after words:
"Keeping in view that there is not encroachment and khokhas will be placed on its
original places near A/G office and Pak PWD Colony Sariab Road Qta."
22. The above adding m ade by hand written creates serious doubt in the authenticity
of the such letter, as such, without recording evidence and confronting the same with the
original one it could not be admissible.
23. Moreover, the petitioner also filed certain letters through C.M.A. No.956 of 2013
on 2nd October, 2013 issued by the Government of Pakistan Public Works Department,
Deputy DCO, Capital City Police Officer, Executive Engineer of PWD, Town Municipal Officer Chiltan Town Quetta, Assistant Commissioner Quetta. The per usal of all above
letters reflects that the officials were corresponding with regard to the installation of
illegal cabins along with boundary wall of Federal Government Office Complex, Sariab
Road, Quetta.
24. In view of above, the judgments and decrees p assed by the Courts below did not
carry any weight without adhering and adverting into the root causes of the case being public importance and merely on the admission of a T.M.O. being unauthorized by the Municipal Corporation decreed the suit of the plain tiffs/private respondents without
framing issues and without recording evidence, the same suffers from misreading, non-reading and mis -appreciation of law also suffers from illegalities and irregularities void
ab initio.
Thus the petition is partly allowe d, the impugned judgments/decrees dated 13th
March and 29th October, 2010 respectively passed by the Court below are hereby set
aside and the case is remanded to the trial Court with the directions to provide full and
fair opportunity to the parties to fil e their relevant written statements, frame issues and
after recording evidence decide the same on merits in accordance with the law within a
period of three months.
ZC/34/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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