Order Sheet

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Constitution Petition No. D-2549 of 2011

(Muhammad Luqman and another Vs. Syed Nazar Hussain Shah)

DATE

ORDER WITH SIGNATURE OF JUDGE

Before:

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Nisar Ahmed Bhanbhro,

Petitioners: Muhammad Luqman and another

Through Mr. Ghulam Dastagir A. Shahani, Advocate.

Respondent Syed Nazar Hussain Shah through LRs

Through Mr. Safdar Ali G. Bhutto, Advocate

Date of Hearing: 17.04.2025

Date of Order: 30.04.2025

O R D E R

NISAR AHMED BHANBHRO J.- Through instant petition, petitioners (Defendants) have challenged the order dated 14.10.2011 (impugned order), passedin Civil Revision Application No.01 of 2010, bythe Court of Learned Additional District Judge, Kashmore, (Revisional Court) wherein the order dated 24.11.2009 passed by the Court of Learned 1^st Civil Judge, Kashmore(Trial Court) in Civil Suit No.02 of 1988 was maintainedand civil revision application was dismissed. The Petitioners have prayed to declare the impugned orders as illegal, void, null, unlawful and colourful exercise, so also without justification and against the law of natural justice and not liable to be sustained thus be set aside.

2. The facts giving rise to filing of this petition are that RespondentSyed Nazar Hussain Shah (Plaintiff) filed Suit No.02 of 1988 before the Court of Learned Civil Judge, Kashmore seeking relief of declaration and Permanent Injunction. Per averments in plaint, Respondent (Plaintiff) was owner of residential house 1290 Square feet and a shop measuring 300 square feet situated near Masjid Hussaini near Kashmore Bus Stop and plot of shop was granted to him by Government of Sindh. Respondent (Plaintiff)averred that he belonged to Shia community and he was maintaining and managing Masjid Hussaini as Pesh Imam, which was meant for Shia Sect. Petitioners (Defendants) belonged to Sunni Sect, they threatened him for forcible dispossession, therefore, he filed suit, seeking declaration that he was owner of house and plot by way of grant and Masjid Hussaini was also meant for Shia Community and interference of Petitioners (defendants) in the rights of Respondent (Plaintiff) over suit property was illegal. Petitioners (Defendants) appeared before Trial Court sought time for filing of written statement, but failed,despite of many opportunities. Trial Court struck off the defense and decreed the suit ex-partie vide judgment and decree dated 30.06.1988. Petitioners (Defendants) filed Civil Revision Application No 02 of 1989 before the Court of Learned District Judge, Jacobabad, which was assigned to Court of Learned 2^nd Additional Sessions Judge, Kandhkot, (Revisional Court). The RevisionApplication was dismissed vide order dated 02.12.1990. Petitioners (Defendants) preferred Constitution Petition No.464 of 1990 before Sukkur Bench of this Court, which was also dismissed vide order dated 09.04.1991.

3. On 24.01.1991 Respondent (Plaintiff) filed an application under section 151 CPC, complaining the breach of permanent injunction granted in his favor by the Defendant and prayed for implementation of Decree dated 30.06.1988. Trial Court heard parties, allowed application of Plaintiff (Decree Holder) vide order dated 15.03.2005. Defendants (Judgment Debtors) challenged order of Trial Court before District Court in Civil Revision Application No.01 of 2005 which was allowed vide order dated 19.04.2007, andorder dated 15.03.2005 of Trial Court was set aside, matter was remanded back with directions to re-hear parties and pass a fresh orderas to the maintainability of application under section 151 CPC. Trial Court after re-hearing parties again allowed application under section 151 CPC vide order dated 24.11.2009 by directing District Police Officer and Station House Officer to make sure that Plaintiff is put into possession of Suit Property and no untoward incident takes place. Defendants/JDs filed Civil Revision Application No.01 of 2010 before Court of District Judge, Jacobabad which was assigned to Revisional Court for disposal in accordance with law. Revisional Court heard parties and dismissed Revision Application vide order dated 14.10.2020; hence this petition.

4. Respondent Syed Nazar Hussain Shah and Petitioner No 2 Hafiz Ahmeduddin passed away during pendency of petition, their legal heirs were impleaded as party.

5. Legal Heirs of Respondent Syed Nazar Hussain Shah did not file reply in writing to the instant petition, Learned Counsel appearing for Respondent made a request to treat averments in plaint as objections to this petition, order accordingly.

6. Mr. Ghulam Dastagir A. Shahani Learned Counsel for Petitioners (Defendants) contended that judgment and decree dated 30.06.1988 passed by Trial Court was illegal and without lawful authority as Respondent (Plaintiff) was granted ownership rights over Masjid which was a waqf property. He contended that application under section 151 CPC was misconceived and not maintainable, Courts below assumed jurisdiction not vested in them, acted in excess of jurisdiction, the impugned orders were illegal, arbitrary, mala fide, null and void, unlawful and colorful exercise of power and clear violation of laws. He contended that impugned orders were contrary to law, perverse as decree of Trial Court was not executable, suit of Respondent (Plaintiff) was decreed for Declaration and Permanent Injunctionbut in execution proceedings relief of possession was granted to him. He contended that Respondent (Plaintiff) alleged his dispossession after passing of decree dated 30.06.1988 as such had a fresh cause to file a suit for possession. He contended that application under section 151 CPC was not maintainable as law provided a complete mechanism for execution of decree. He contended that Executing Court cannot go beyond decree, but in the present case executing court traveled beyond decree, thusimpugned orders were not sustainable under the law.He contended that no date and time of alleged dispossession was disclosed either in plaint or in application under section 151 CPC, therefore, claim of possession required recording of evidence. He prayed for allowing this Petition.

7. Mr. Safdar Ali G. Bhutto, Learned Counsel for Respondent (Plaintiff) contended that Petition is not maintainable under the law as Executing Court satisfied the decree. He contended that Trial Court decreed the Suit for Declaration and Permanent Injunction, restraining Petitioners (Defendants) from interfering with rights of Respondent (Plaintiff) in the Suit Property in any manner whatsoever nature. No appeal was filed against Decree of Trial Court, but Civil Revision was filed before the Court of Learned District Judge Jacobabad which was dismissed. Petitioners (Defendants) filed Constitution Petition before Sukkur Bench of this Court which was dismissed in liminie. Decree of Trial Court thus attained finality. He contended that Petitioners (Defendants) defied the decree of Trial Court and dispossessed plaintiff/ Respondent from Suit Propertythough they were restrained from interfering with the rights of Respondent / Plaintiff in the Suit Property in any manner through decree in nature of permanent injunction. He contended that Petitioners (Defendants) have no right or title in the Suit Property. Respondent (Plaintiff) filed an application under section 151 CPC for implementation of decree which was allowed, the impugned orders did not suffer from any illegality or infirmity. Petition was misconceived and liable to be dismissed with costs.

8. Heard learned counsel for parties and examined material available on record with their able assistance.

9. Meticulous examination of record transpired that (Respondent) plaintiff filed Suit No.02 of 1988 before Trial Court praying as under:

“i). That Masjid Hussain belongs to the plaintiff and is maintained and meant by him for Shia Millat to perform their prayers according to their Fiqh Jafferi and any claim interference, and intervention by the defendants is illegal and unjustified and repugnant to the law.

ii). That the plaintiff is legally entitled to enjoy all the rights on his granted residential plots and the defendants are not justified to claim any right thereon.

iii). That the plots possessed and applied for grant by Zamir Hussain Shah neither belong to the defendants nor they have any legal claim thereon.

iv). That to permanently prevent the defendants from interference or to any attempt to interfere in the said mosque and its affairs, its premises and in the residential house/plot of the plaintiff and also that of his son Zamir Hussain Shah and grant any other suitable relief in the eye of law.”

10. (Petitioners) Defendants failed to defend suit properly and despite of grant of ample opportunity failed to file written statement; therefore, they were debarred from filing written statement and suit was decreed ex-parte vide Judgment and Decree dated 30.06.1988. Petitioners (Defendants) did not prefer any appeal against Judgment and Decree of Trial Court, however, after lapse of about 15 months filed a revision application, which was dismissed by Revisional Court. (Petitioners) Defendants filed constitution petition before Sukkur Bench of this Court against the order of Revisional Court, which was also dismissed through a detailed order dated 10.04.1991, thus judgment and Decree passed by Trial Court attained finality. Contention of Learned Counsel for Petitioners that judgment and decree dated 30.06.1988 passed by Trial Court was perverse and illegal and liable to be set aside has no force as this Court cannot reopen the case which has already been adjudicated by a division bench of this Court in first round of litigation and no appeal was filed before Honorable Apex Court, attaching sanctity to the Judgment and Decree.

11. Scope of this Petition is therefore confined to examine the legality, validity and correctness of impugned orders dated 24.11.2009 and 14.10.2011 passed by Courts below on application under section 151 CPC. It reflects from record that during pendency of Petition No 464 of 1990, Petitioners (defendants) defied the Decree of Trial Court, trespassed in Suit Property and dispossessed Plaintiff / DH, which gave a cause to Plaintiff / DH to file an application under section 151 CPC for implementation of Decree. Learned Trial Court after hearing the parties, allowed the application and directed Defendants / JDs to put Plaintiff / DH in vacant possession of the Suit Property vide order dated 24.11.2009. The operative part of the order is reproduced for sake of convenience:

“After passing of judgment & decree dated 30-06-1988 the matter/dispute remained pending in Civil Revision and C.P which ended on 02-12-1990 where after the subject application is filed. The D.H in the suit had not prayed for possession so as to he should have filed execution application for restoration of possession. Since the DH was dispossessed after passing of judgment and decree the remedy left with DH was to file an application U/S 151 C.P.C for restoration of possession and not execution application therefore the application U/S 151 C.P.C in the attending facts and circumstances in maintainable. So for limitation is concerned admittedly after passing of judgment and decree dated 30-06-1988 the dispute remained with Revisional Court and also in C.P before Honourable Sindh High Court Bench at Sukkur. The period so exhausted in legal proceedings bonafidely in Court of law is excluded under the provisions of section 14 Limitation Act. Therefore objections on the point of limitation raised by Ld. Counsel for J.D is not sustainable. It is settled proposition of law that multiplicity of litigation between same parties and same subject matter shall be avoided. It has also been pointed out that Civil Suit No. 67/1991 filed by J.Ds in the name of M/S Anjuman Qadria in respect of suit premises filed before Sr. Civil Judge Kandhkot was dismissed on 22-09-1994. Certified copy whereof is placed before me while advancing arguments, In the title of civil Suit No.67/1991 Board of Revenue, Deputy Commissioner, Jacobabad, plaintiff/D.H Nazar Hussain Shah has been impleaded as defendant. Ld. Counsel for J.D has not been able to controvert the dismissal order dated 22-09-1994 nor urged that against the said order any appeal is pending.

In view of above facts and circumstances I allow application in hand with directions to J.Ds to hand over possession of Mosque, residential plot and Shop (Suit Property) to DH without fail. The dispute appears to be sensational therefore SHO concerned and DPO are advised to make sure that no law and order situation should be created while putting the disputed premises to DH.”

12. Revisional Court maintained the order of Trial Court, which culminated in filing of this Petition. By way of judgment and decree dated 30.06.1988, Plaintiff was granted relief of Permanent Injunction, whereby Defendants were permanently restrained from causing any kind of interference in the suit property. Court grants Permanent or Perpetual Injunction under section 54 of the Specific Relief Act 1877 which reads as under:

54. Perpetual injunctions when granted. Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.

When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.

When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases (namely):-

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(d) where it is probable that pecuniary compensation cannot be got for the invasion;

(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Explanation.– For the purpose of this section a trademark is property.

Illustrations…………..

In the present case Court granted permanent injunction on a suit filed by plaintiff / Respondent asserting that Petitioners/ Defendants were invading his rights to enjoy suit property, the Court being satisfied with assertion made and material available on record decreed the suit and permanently restrained Petitioners/ Defendants from interfering with the rights of Plaintiff in the suit property in terms of sub section (c) and (d) of Section 54 of the Specific Relief Act.

13. Petitioners/ Defendants were under an obligation to obey the judgment and decree of Trial Court; it operated against them but they defied decree during the pendency of petition before Sukkur Bench of this Court and dispossessed Plaintiff / Decree Holder from Suit Property. The Court of law issued Permanent Injunction and restrained Defendants /Petitioners or anybody else acting on their behalf from engaging in specific action on a lasting basis relating to Suit Property. Petitioners (Defendants) did not obey the Court Decree, such fact transpired from their pleadings before this Court as well as before Trial Court in proceedings under section 151 CPC, thus compelled Respondent (plaintiff) to file an application under section 151 CPC for execution and implementation of Court Decree. The Executing Court normally regulates its processfor execution of Decree codified under Order XXI of CPC, but in the instant case it was a Decree for Permanent Injunction which was disturbed knowingly and deliberately. This defiance exposed Petitioners (Defendants) to penal action, which was avoided as Trial Court while dealing with application 151 CPC only caused implementation of its decree otherwise it was a fit case for initiating contempt proceedings. Since the provisions of Order XXI do not codify a procedure for execution of decrees of permanent injunction in particular when a party under possession of Suit Property is dispossessed after grant of injunction, the Trial Court thus rightly resorted to its inherent powers conferred under section 151 CPC and sought execution of Decree. The makers of Code of Civil Procedure embodied section 151 in the code for such eventualities when no other provision was available to undo a wrong. The basic object behind establishment of courts was not just to administer law but was in fact to dispense justice. The ultimate goal sought to be achieved by the courts was thus to do complete justice between the parties and to ensure that the rights were delivered to those, to whom they belonged and no hurdles were ever considered strong enough to detract the courts from reaching the said end. The Petitioners/defendants flouted decree of the Court treating themselves above the law, such conduct on their part if not checked would have created distrust and feeling of helplessness in the public. Trial Court therefore sought implementation of its decree by showing a reasonable restraint and without making recourse to provisions of Rule 22 of Order XXI which envisages payment of cost and jail for non-compliance of a decree of injunction. The Court under its inherent powers conferred under section 151 CPC, is empowered to make such orders, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. Section 151 CPC is an enabling provision, the powers thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which CPC has been designed, but despite the best efforts of its architect, to cater for all possible situations, if it is found lacking in meeting some eventualities, the Court can act ex delicto justiciae, supply the omission in the procedure, adopt methodology, for effectually carrying out the purpose. It is well established proposition of law that all procedural laws are subservient to the cause of justice and therefore, such laws never limit or control the power of the Court to pass an order which is necessary to do full justice.The framers of the Code were also alive to the above-stated object of the procedural law and perhaps for this reason and to remove and dispel all doubts in this regard unequivocally codified section 151 in the following manner:

“Nothing in this Code shall be deemed to limit or otherwise effect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

The Superior Courts of the Country have consistently held that inherent powers can be exercised to do complete justice and prevent the abuse of process of law.

14. Honorable Supreme Court of Pakistan in the case of North West Frontier Province Government Peshawar through Collector, Abbottabad and anotherversusAbdul Ghafoor Khan throughlegal Heirs and 2 others reported in PLD1993 SC 418 has held as under:

“Not un-often it has been noticed by the Courts that the provisions of Order XLI, C.P.C. are not exhaustive. Seemingly, to fill in the gap in the procedure, section 107(2) was enacted under which the Appellate Court has the same powers and is burdened with the same duties, as conferred and imposed on the trial Court. Reference here may also be made to Order XLI, rule 33, C.P.C., which in order to prevent the ends of justice being defeated gives wide discretionary powers to the Appellate Court, to adjudge the rights of the parties, as the ends of justice may demand and pass such decree or order, as ought to have been passed. The Court has also inherent powers under section 151, C.P.C., to make such orders, as may be necessary for the ends‑ of justice and to prevent the abuse of the process of the Court.”

15. Honorable Supreme Court of Pakistan in the case of COLLECTOR OF CENTRAL EXCISE AND SALES TAXVersusPAKISTAN FERTILIZER COMPANY LTD reported in 2007 SCMR 351 has held as under:

“There is no cavil with the proposition that pursuant to the provisions as contained in section 151, C.P.C. the inherent powers can only be exercised to secure the ends of justice or for the purpose of' preventing abuse of the process of the court and the words "ends of justice" and "abuse of' the process of the Court" should be construed with due regard to rest of the provisions of the Code because the main object of section 151, C.P.C. is to prevent the Court from being rendered powerless on account of any omission in the Code and empowers the Court to make necessary orders and no other orders. If any authority is needed reference can be made to case Emirates Bank International Ltd. v. Adamjee Industries Limited 1993 CLC 489.”

16. In the present case, the Respondent / Plaintiff was granted injunction to enjoy peaceful possession over suit property in terms of decree dated 30.06.1988 without any hurdles but Petitioners (Defendants) groped into dark, infringed such rightsby taking law into hands and dispossessed Plaintiff. The courts below rightly thwarted such unlawful acts of Petitioners (Defendants) through impugned orders and granted right to the party to whom it belonged. The impugned orders in any manner did not affect the rights of Petitioners/ Defendants as throughout proceedings during three rounds of litigation they had failed to establish their right or interest in the Suit Property. the Petitioners were acting as intruders and Courts below rightly took cognizance of the conduct of Petitioners (Defendants) by invoking inherent powers conferred under section 151 CPC. The Trial Court took lenient view while dealing with the implementation of Decree issue and simply passed an order for putting Decree Holder into possession, otherwise it was a fit case to initiate contempt proceedings against the Petitioners/ Defendants for defying and disobeying the Decree of Court. Petitioners/ defendants have failed to establish their right or interest in Masjid, which belongs to Shia community and admittedly Petitioners are professing sunni sect, therefore, for peace and tranquility parties must respect each other’s religious sentiments as ordained under Shariah.

17. This Court under its supervisory jurisdiction conferred under article 199 of the Constitution is assigned a balancing task to do justice between the parties. The Petitioners failed to demonstrate their bona fide for having any right or interest in the suit property. They are the architects of their own miseries by showing indolence and not pursuing the case properly, not only the suit filed by Respondent (Plaintiff) was decreed ex partie but the suit No 67 of 1991 filed by the Petitioners on the Suit Property was also dismissed by Trial Court in default for non-prosecution on 22.09.1994 as reflected in the impugned order dated 24.11.2009 of the Trial Court. Conduct of Petitioners manifested that their interest and intent todrag Respondent before Courts. It is high time to deal such litigations with iron hands and close the flood gate of frivolous litigation by imposing costs.

18. Honorable Supreme Court of Pakistan in the case of ZAKIR MEHMOOD Versus SECRETARY, MINISTRY OF DEFENCE (D.P), PAKISTAN SECRETARIAT, RAWALPINDI and others reported in 2023 P L C (C.S.) 1030 has held as under:

“In view of the legal position stated above, we find that while deciding an appeal under the Act or an application under section 12(2) of the C.P.C., the Tribunal has the powers to impose special costs, without any upper limit of amount, on a party to that appeal or application as the case may be, keeping in view the peculiar facts and circumstances of a particular case. In the present case, the Tribunal has imposed special costs of Rs.50,000/- on the petitioner for wasting the precious public time of the Tribunal by making a vexatious application under section 12(2), C.P.C. Such exercise of discretion by the Tribunal in imposing the costs is fully justified in the facts and circumstances of the case stated in para 2 above, and in no manner does it tantamount to an arbitrary or perverse exercise of discretion. The present petition is thus found meritless. It is therefore dismissed and the leave to appeal is declined. We may mention here that we have abstained to impose additional costs, in the exercise of powers of this Court under the Supreme Court Rules, 1980, while dismissing the present petition as the petitioner has not pressed the merits of his application under section 12(2), C.P.C. before us and argued his grievance only to the question as to the powers of the Tribunal to impose costs.

Before parting with the order, we find it necessary to emphasise that it is high time that courts and tribunals should regularly exercise their powers to impose reasonable costs to curb the practice of instituting frivolous and vexatious cases by unscrupulous litigants, which has unduly burdened their dockets with a heavy pendency of cases, thereby clogging the whole justice system. The possibility of being made liable to pay costs is a sufficient deterrence to make a litigant think twice before putting forth a false or vexatious claim or defence before court. The imposition of these costs plays a crucial role in promoting fairness, deterring frivolous lawsuits , encouraging settlement, and fostering efficient use of resources: (i) promoting fairness: imposing costs in litigation helps to create a level playing field for both plaintiffs and defendants. By requiring both parties to bear the financial burden of litigation, the system encourages parties to consider the merits of their case before initiating legal action. This helps to ensure that only those with legitimate grievances pursue legal recourse, reducing the possibility of abuse; (ii) deterring frivolous lawsuits: imposing costs can discourage parties from filing baseless or frivolous claims, as the risk of incurring significant financial losses may outweigh any potential gains. This helps to protect defendants from having to defend themselves against meritless claims, reducing strain on the court system and preserving judicial resources; (iii) encouraging settlement: when parties are aware of the potential costs associated with litigation, they may be more inclined to engage in settlement negotiations or alternative dispute resolution methods. This can result in more efficient resolution of disputes, lower costs for all involved, and a reduced burden on the court system; (iv) fostering efficient use of resources: imposing costs in litigation incentivizes parties to focus on the most relevant and important aspects of their case, as both parties will want to minimize their expenses. This can lead to more efficient use of legal resources, including court time and the expertise of legal professionals, and may result in more focused and streamlined proceedings. The practice of imposing costs would thus cleanse the court dockets of frivolous and vexatious litigation, encourage expeditious dispensation of justice, and promote a smart legal system that enhances access to justice by taking up and deciding genuine cases in the shortest possible timeframe.”

19. For what has been discussed herein above, we are of considered view that the Trial Court rightly exercised its inherent powers to do complete justice and order of Trial Court was justly upheld by Revisional Court. The impugned orders of Courts below were within the premise and spirit of section 151 CPC and did not suffer from any illegality or irregularity warranting interference by this Court under it corrective and supervisory jurisdiction conferred under article 199 of the Constitution. No case for interference under the writ jurisdiction is made out. Since the Petitioners have dragged Respondents without any cause for last more than 35 years and their Revision Application was also dismissed with costs, but they did not stop litigating and brought this petition again before this Court, the conduct of the Petitioners reflected their ill intentions and tricks to drag Respondent before Courts which resulted in piling up of cases, wasted Court time which could have been spent over genuine litigation therefore this Petition is dismissed by imposing cost of Rs. 15000 to be deposited in clinic account of this Court within 30 days of this order.

The Petition stands disposed of with pending applications.

Judge