PLJ 2024 Karachi (Note) 8
Present: Muhammad Junaid Ghaffar and Adnan-ul-karim
Mamon, JJ.
MAQBOOL
AHMAD and others--Petitioners
versus
MUHAMMAD
HASHIM and others--Respondents
C.P. No.
D-280 of 2023, decided on 17.5.2023.
Civil Procedure Code, 1908 (V of 1908)--
----S. 151--Constitution
of Pakistan, 1973, Art. 199--Application for seeking direction to revenue
authorities--Non-compliance of observations of Court--Allowed--Functus
officio--Application was filed after rejection of plaint--Bona fide
error--Once plaint was rejected by trial Court, said Court for all intent and
legal purposes became functus officio, and no application of such a
nature in terms of Section 151, CPC could have been entertained by said Court--Once
a case was finally decided, Court became functus officio and only
provision which allowed changes in final order was provision of review, scope
of which was limited to correcting an error that was floating on face of
record--Court after entertaining application has passed orders with certain
directions, including police aid and that too without notice to
Petitioners--Such conduct on part of trial Court is least appreciated--Trial
Court has exceeded its jurisdiction in entertaining application of Respondent
No. 1 under Section 151, CPC after passing an order for rejecting plaint; could
not have passed any such orders--Petition allowed.
[Para
3, 4 & 7] A, B & C
2018 SCMR 359, 2016 SCMR
179, 2020 CLD 473 and 2019 CLD 526.
Mr. Parkash Kumar, Advocate for Petitioners.
Mr. Mumtaz Alam Leghari, Advocate for Respondent No. 1
Mr. Rafiq Ahmed Dahri, Asstt: A.G.
Date of hearing: 17.5.2023.
Order
Through this petition, the petitioners have impugned two orders
dated 11.2.2023 and 13.8.2022 passed respectively by District Judge, Tando
Allahyar in Civil Revision Appl. No. 34 of 2022 and 1st Senior Civil Judge,
Tando Allahyar in F.C. Suit No. 78 of 2022, whereby an application under
Section 151, CPC filed by Respondent No. 1 has been allowed.
Heard learned counsel for the parties and perused the record.
It appears that Respondent No. 1 filed a suit for declaration, possession and
permanent injunction wherein the petitioners filed an application under Order
VII Rule 11, CPC for rejection of plaint which was allowed vide order
dated 20.04.2022; however, while rejecting plaint the trial Court made some
observations as to advising the plaintiff to approach concerned Revenue
Authorities for demarcation/ survey, whereas, they were also given certain
directions. Admittedly, such order of the trial Court regarding rejection of
plaint was never challenged by Respondent No. 1. Thereafter Respondent No. 1
filed an application under Section 151, CPC seeking directions to the revenue
authorities for compliance of the observations as recorded in the order of
rejection of the plaint. Such application was allowed vide order dated
13.8.2022 and police aid was provided for taking possession from the
petitioners as well as certain further directions to the revenue authorities.
The petitioners impugned such order before the District Judge in Civil Revision
Application and despite recording a finding that an application under Section
151, CPC could only be entertained and decided when a lis is pending and
admittedly at the time of filing of application under Section 151, CPC the case
vas not pending and was disposed of on 20.4.2022; however. Notwithstanding
these observations and even after such conclusion, the Revision was dismissed
which apparently appears to be a result of some confusion.
Be that as it may, in our considered view once the plaint was
rejected by the trial Court, the said Court for all intent and legal purposes
became functus officio, and no application of such a nature in terms of
Section 151, CPC could have been entertained by the said Court. Per settled
law, once a case was finally decided, (as is the case in hand) the Court became
functus officio and the only provision which allowed changes in the
final order was the provision of review, scope of which was limited to
correcting an error that was floating on the face of the record.[1]
It is further settled that after passing of a final order giving a fixed period
for making compliance of any direction, not even an application under Section
148, CPC could have been granted by the trial Court as on the said date the
trial Court had become functus officio by virtue of its judgment/decree as it
ceased to have jurisdiction in the matter.[2] It
may also be observed that it was never a case of passing of a preliminary
decree, wherein, the Court still retains powers to see that whether the
directions contained in the said decree have been complied with before passing
a final decree. In a case wherein the plaint is rejected, the said order is a
final order. In Anees-ur-Rehman[3] it
has been held that “functus officio” meant having fulfilled all
functions, discharged duty/duties, or discharged office, or accomplishment of
purpose, which resulted in something no longer remaining in force or having
authority. When a Court would pass a final order for disposal of a suit, the
Court would become functus officio and would be precluded from passing
any order, which could disturb or modify the same, which in fact would open up
the entire case.[4]
Not only this, the Court after entertaining the application has
passed orders with certain directions, including police aid and that too
without notice to the Petitioners. Such conduct on the part of the trial Court
is least appreciated. In fact, the order of the trial Court tries to seek
execution of its observations and advise to Respondent No. 1/Plaintiff so
recorded while rejecting the plant in the Suit. It appears to have exercised
powers of an executing Court without any judgment and decree of such nature.
This in fact appears to be a novel idea of implementing an order which by
itself is neither an order with lawful authority or jurisdiction nor is
executable in such manner.
This Court while entertaining this petition on 9.3.2023 and
passing of ad-interim orders, also called report from the concerned Courts and
the Court of 1st Senior Civil Judge, Tando Allahyar has sent its
report dated 16.3.2023 wherein though an attempt has been made to defend the
impugned order, however, in para-4 it has been stated as under:
Sir, concerned
Revenue Authorities had taken certain Actions upon Suit Property/Disputed
Property, under Revenue Laws/Rules, with their own, and not on the Orders of
this Court.”
From perusal of the aforesaid report of
the learned Judge it appears that on the one hand he has defended his order,
and on the other, he states that the action taken by the Revenue Authorities
was pursuant to, and under respective Revenue Laws on their own and not on the
orders of the Court. This stance apparently does not seem to be correct or
justified as admittedly the issue triggered when an application under Section
151, CPC was filed and entertained by the Court. This is further strengthened
when comments of the Respondent No. 4 and 6 are examined wherein it is
categorically stated by them that they have acted in compliance of the orders
passed by the trial Court on 13.08.2022
In view of hereinabove facts and circumstances of this case it
appears that the trial Court has exceeded its jurisdiction in entertaining the
application of Respondent No. 1 under Section 151, CPC after passing an order
for rejecting the plaint; hence, could not have passed any such orders. Insofar
as the order of the Revisional Court is concerned, on perusal of the order in
totality, it reflects that the reasoning so assigned is in favour of the
petitioner, however, the final conclusion is otherwise. This, to us, appears to
be a bona fide error. Accordingly, order dated 13.8.2022 passed by the Trial
Court on the application of Respondent No. 1 under Section 151, CPC is hereby
set-aside, whereas, order of the Revisional Court dated 11.2.2023 is modified
to the extent of last paragraph which is hereby set aside. The petition is
allowed in the above terms.
(Y.A.) Petition allowed