2016 M L D 690


2016 M L D 690

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

Mst. HALIM BI---Petitioner

Versus

MOHAMMAD and 14 others---Respondents

C. Rev. No.10 of 2013, decided on 1st April, 2015.

Civil Procedure Code (V of 1908)---

----S.12(2)---Suit for declaration and permanent injunction---Trial Court passed its judgment and decree---Said judgment and decree was set aside by appellate Court---Application under S.12(2), C.P.C., was moved and accepted by another Additional District Judge---Order passed by the (Additional District Judge), though was not in conflict with the previous order passed by the appellate court (Additional District Judge), but it made no sense to pass multiple orders on the same subject---When impugned order was being passed, order earlier passed by Additional District Judge was in field---Impugned order being result of mistake of court, merited to be set aside; and order earlier passed by Additional District Judge, which was in field, was upheld, in circumstances.

            Akhond Mohammad Ali for Petitioner.

            Ali Khan and Abdul Rahim for Respondents Nos. 1 to 12.

            Khadim Hussain for Respondents Nos. 14 and 15.

            Date of hearing: 1st April, 2015.

ORDER

            MUHAMMAD ALAM, J.---Order dated 24-07-2013, passed by the learned Additional District Judge Skardu in CFA No.10/2007, 11/2008, 27/2012, whereby, the learned Additional District Judge set aside the judgment/decree dated 15-03-2007, passed by the Civil Judge Skardu, in Civil Suit No.50/2000, has been challenged through this petition. For ready reference, I reproduce the impugned order hereunder:--

"Hence, this appeal is hereby accepted and suit is remanded back to the court of Senior Civil Judge, Skardu after setting aside of the order dated 15.3.2007 passed by learned Civil Judge 1st Class, Skardu and parties are directed to appear before the court of Senior Civil Judge, Skardu and plaintiff is directed to file amended plaint."

2.         Petitioner/plaintiff filed Civil Suit No.50/2000 seeking declaration coupled with permanent injunction to the effect that petitioner/plaintiff has a right to irrigate the lands of her husband from the water of Mushi Harka, Kali Harka and Sundus Harka, on the basis of oral gift by respondent No.1/defendant No.1. The learned trial court completed trial proceedings and passed the judgment/decree in the following words:--
         
Issue No.12/Relief:
         
14. In view of my above issue-wise findings the suit of the plaintiff against defendants Nos. 1 to 5, 7 and 8 is dismissed holding not proved. However, on the basis of admissional written statement of defendant No. 6, a decree to the extent of the share of the said defendant is granted in favour of the plaintiff and against the said defendant. Costs are even."

On appeal (CFA No.10/2007, 11/2008, 27/2012), the then learned Additional District Judge Skardu passed order dated 27-04-2013. Feeling aggrieved from order dated 15-03-2007 of the learned Civil Judge Skardu, passed in Civil Suit No.50/2000, and order dated 27-04-2013 of the learned Additional District Judge, Skardu passed in C.F.A. No.10/2007, 11/2008, 27/2012, respondents Nos.14 and 15 filed a petition under section 12(2), C.P.C. The then Additional District Judge, Mr. Nazim Nasir, passed order 02-11-2011 in the following words:--
         
"The petition of the petitioners 12(2), C.P.C. is accepted and setting aside the decree of trial court dated 15-3-2007 and this court's decree dated 18-5-2011 subject to the payment of cost of Rs.5000/- which may be deposited in the Government Treasury as fine for the reason that the petitioners remained silent despite of having knowledge and wasting the precious time of the trial court as well as this court and has not filed any petition to be party in the suit.

            (Petition 12(2), C.P.C. accepted).

            Order announced in the open court.

            This file be consigned to record after its due completion."

            Announced:      Sd/Addl. District Judge
            02-11-2011     Skardu

From perusal of record, it appears that the learned Additional District Judge Skardu, Mr. Nazim Nasir, passed the above order in C.Misc. No.26/2011. Later on, the then Additional District Judge Skardu, Mr. Mohammad Aqeel, passed impugned order on CFA No.10/2007, 11/2008, 27/2012.

3.         I have thoughtfully considered arguments of the learned counsel for parties and have gone through the file. A very sorrowful aspect of the case is conduct of the learned two Additional District Judges, Mr. Nazim Nasir and Mr. Mohammad Aqeel. I have reproduced, supra, the order dated 02-11-2011 of the then learned Additional District Judge Skardu, that he passed in C.Misc. No.26/2011. Learned Additional District Judge Skardu, Mr. Mohammad Aqeel, passed the impugned order, which although is not conflicting with the previous order of learned Additional District Judge Skardu, Mr. Nazim Nasir, but in my opinion, it makes no sense to pass multiple orders on the same subject. When the impugned order was being passed, the order of the learned Additional District Judge Skardu, that he passed in C.Misc. No.26/2011, was in field.

4.         In the above circumstances, I have no alternative except to hold that the impugned order is result of mistake of the learned Additional District Judge Skardu, therefore, merits to be set aside. Order dated 02-11-2011 of the learned Additional District Judge Skardu, Mr. Nazim Nasir, is in field and the same merits to be upheld. I, therefore, accept this petition, set aside the impugned order and direct parties for appearing before the trial court who should resume the trial of the Case in the light of order dated 02-11-2011 of the then learned Additional District Judge Skardu after hearing parties afresh on the suit (Civil Suit No.50/2000).

5.         Petition is accepted. This file be consigned to record.

HBT/93/GB                                                                                         Petition accepted.



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