Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
Civil Revision No.91/2008
(Muhammad Nazir Versus Muhammad Bashir and others)

JUDGMENT
Date of Hearing 05.05.2015
Petitioner by: Mr. Muhammad Asif Chaudhry, Advocate.
Respondents by: Raja Muhammad Rashid, Advocate.

Atir Mahmood, J.: Through this civil revision, the petitioner

has impugned order dated 12.03.2008 passed by learned Additional
District Judge, Rawalpindi whereby the petition under Order XXI rule
32, read with Order XXXIX rule 2(3) of CPC (hereinafter referred as
the application) for punishment to the respondents for breach of
their undertaking, was dismissed

2. Brief facts of the case are that the petitioner-plaintiff namely

Muhammad Nazir, being owner in possession of the suit property,
filed a suit for permanent injunction in the court of learned Civil
Judge, Kahuta in respect of land measuring 6 marlas bearing property
No.38 situated at Thoha Khalsa, which is an evacuee property alleging
therein that the said property was allotted to the father of the petitioner
through P.T.O. with specific boundaries and he is enjoying the
possession of the suit land since long, whereas the respondents have
no concern whatsoever with the suit land but they are intended to
interfere into the possession of the petitioner and changing the nature
of the suit property. Alongwith the suit, the petitioner also filed an
application under Order 26 rule 9 of CPC for appointment of Local
Commission for inspection of the spot. The learned Civil Judge vide
order dated 15.01.2007 granted ad-interim injunction directing both
the parties to maintain the status quo till the next date of hearing and
Raja Habib-ur-Rehman, Advocate was appointed as a Local
Commission with the direction to visit the site and submit report about
C.R. No.91-2008 2

the factual position at the spot. The Local Commissioner inspected the
spot and submitted his report to the learned trial court. The
respondents did not file any objection to the report of the Local
Commission. The learned trial court accepted the application under
Order XXXIX rule 1 and 2 of CPC, in the terms that the respondents
were restrained from interfering into the possession of the petitioner,
encroaching the suit land and from changing its nature, vide order
dated 09.06.2007. The respondents being dissatisfied from the said
order filed an appeal before the learned Additional District Judge
which was disposed of vide order dated 06.02.2008. The operative
part of the said order is reproduced as under:-

In view of the statement made by the learned counsel

for the appellants, the suit of the respondents has born fruit and
has become infructuous. This appeal is accordingly accepted,
the impugned order is set aside and as a result suit of the
respondents stands dismissed. No order as to costs.

Thereafter, the petitioner moved an application under Order XXI rule

32 read with Order XXXIX rule 2(3) of CPC seeking punishment to
the respondents for breach of their undertaking and violation of the
orders passed by the learned Additional District Judge and also for
restoration of possession. The petitioner also moved an application for
grant of status quo and appointment of Local Commission. The
learned Additional District Judge having taken cognizance of the
matter summoned the respondents, who filed their written statement
on 12.03.2008. The learned Additional District Judge after hearing
both the parties dismissed the application of the petitioner vide order
dated 12.03.2008 which is impugned in the instant civil revision.
Hence this civil revision.

3. Learned counsel for the petitioner submitted that the impugned

order is against the law and facts of the case; that the impugned order
passed by the learned appellate court is result of misreading and non-
reading of evidence; that the learned appellate court while dismissing
the application remained oblivious of the law that even rejection of
the plaint on the undertaking of the respondents was a decree within
C.R. No.91-2008 3

the meanings of section 2(2) of CPC as held by this Court in the

various cases; that the petitioner had moved an application for
appointment of Local Commission again before the learned
Additional District Judge to ascertain the physical position at the suit
property, but the learned appellate court has not adverted to the same
at all and dismissed the application on the same day when the
respondents filed their reply to the application filed by the petitioner;
that the learned appellate court has also not been able to appreciate
that if the undertaking given before a court of law is allowed to be
violated by any party to the proceedings then no lawful action can be
taken against such a party and it will become mockery of law.

4. On the other hand, learned counsel for the respondents has

supported the impugned order.

5. Arguments heard. Record perused.

6. Scanning of the record reflects that the petitioner by filing the

application asserted that the respondents had violated the undertaking
given by them before the learned Additional District Judge on
06.02.2008 and have trespassed over the property and constructed one
room and four walls upon the suit property owned and possessed by
the petitioner. He sought the restoration of the possession and
initiation of proceedings against the respondents for committing the
contempt of court by violating the order dated 06.02.2008.

7. In reply to the application, the respondents did not deny the

undertaking given by their learned counsel before the learned
appellate court but submitted that they have not violated the said
undertaking. They however raised an objection that the application
could not be filed before the learned appellate court as it was a court
of appeal and the application could be decided only after framing of
issues and recording of evidence by the learned trial court. The
relevant paragraph of the written reply is reproduced as under:-
C.R. No.91-2008 4

8. In my view the impugned order passed by the learned

Additional District Judge/appellate court is not sustainable for the
following reasons:-

(i) That the learned Additional District Judge failed to

appreciate that there was a specific admission of the
respondents that there were triable issues raised in the said
application which could not be decided without framing of
issues and recording of evidence. The contention of the
respondents that the learned Additional District Judge was not
competent to frame the issues and record the evidence is
absolutely misconceived. It is observed that if any restrained
order is passed by an appellate court or there is any
undertaking given by any of the parties before the said court
but subsequently it is violated then the only court which can
proceed further on application of any aggrieved party, is the
same court before whom any undertaking was given or any
order was passed. Therefore, the learned Additional District
Judge should have proceeded with the matter by framing the
issues and giving an opportunity of hearing to the parties to
lead their respective evidence. The denial by the learned
Additional District Judge to proceed with this matter amounts
to negation of dispensation of justice.
(ii) That a party who undertakes to do an act before the court
and on the basis of that statement/undertaking, the proceedings
are dropped i.e. suit or appeal is dismissed then the said
undertaking has the effect of a decree and is executable against
the defaulting party in its letter and spirit.

9. In the present case, the respondents undertook that they will

not interfere in the suit property owned by the petitioner but allegedly
they trespassed and made some construction over the suit property
therefore, it was incumbent upon the learned Additional District
Judge/appellate court to dilate upon the matter itself but the petitioner
cannot be directed to get the demarcation of the disputed property and
raise his grievance before any other legal forum. I have no doubt in
my mind that it was duty of the learned appellate court to ascertain the
exact situation of the suit property, it may be through demarcation of
the suit property and if there was any violation made by the
respondents of their own commitment/undertaking given by their
counsel before the learned Additional District Judge then an
C.R. No.91-2008 5

appropriate order in that regard should have been passed. This aspect
becomes more significant when there is an application filed by the
petitioner for appointment of a local commission which remained
unattended and the learned Additional District Judge failed to take
notice of the same nor any order was passed thereupon.

10. The impugned order passed by the learned Additional District

Judge is a nullity in the eye of law.

11. In view of the above discussion, this civil revision is allowed,

the impugned order dated 06.02.2008 passed by the learned
Additional District Judge is set-aside. Resultantly, the application
under Order XXI rule 32, read with Order XXXIX rule 2(3) of CPC
alongwith the application under Order XXVI rule 9 of CPC for
appointment of local commission shall deem to be pending before the
learned Additional District Judge, who shall decide the same afresh in
accordance with law.

(ATIR MAHMOOD)
Judge

wasif