Jahandad vs A.D.J Chakwal etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

Writ Petition No.1230 of 2015 Jahandad Versus Additional District Judge & others

JUDGMENT

Date of hearing: 17.03.2025

Petitioner by: Khawaja Khalid Farooq, Advocate.

Respondent No.2 by: Mr. Muhammad Aamir Butt, Advocate.

State by: Mr. Imran Shoukat Rao, Assistant Advocate General.

Malik Javid Iqbal Wains: Through this constitutional petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“The Constitution”), the petitioner has assailed the order dated 21.02.2015, passed by the learned Additional District Judge, Chakwal, whereby the civil revision filed by respondent No.2 against the order dated 30.04.2014 passed by learned Civil Judge Class-III, Chakwal/executing court was accepted and the matter was remitted to the learned executing court to execute the decree rendered by the trial court dated 18.02.2009 by considering it as integral part of the judgment dated 03.02.2010 passed by the appellate court.

2.The essential facts relevant to the resolution of this writ petition are that the respondent No.2/plaintiff instituted a suit for permanent and mandatory injunction against the petitioner and respondent No.3/defendant on 20.03.2003 with the assertions that there is a street of 18 feet between the houses of the parties (petitioner & respondent No.2), however the petitioner encroached the street approximately 9x55 feet and reduced the passage, as a result thereof, respondent No.2 suffered an irreparable loss. It was averred in the plaint that the disputed street is situated within the municipal limits and the petitioner had encroached upon 9 x 55 feet of the street in violation of map

sanctioned by Tehsil Municipal Administration Chakwal (hereinafter

“TMA”).

3.The petitioner resisted the aforementioned suit by filing his written statement, wherein he contended that the disputed street is not 18-feet wide rather its width is 9-feet and that he himself had left the passage of said street. Further asserted in his written statement that no encroachment was made upon the disputed street.

4.The written statement on behalf of respondent No.3/TMA was also filed before the trial court, wherein it was averred that the disputed street has existed between the houses of the petitioner and respondent No.2 and there has been encroachment of 09-feet upon the street.

5.Out of conflicting stance of the parties, the trial court framed the following issues on 30.09.2003:-

ISSUES:

1.Whether the plaintiff has no cause of action to file this suit?

OPD

2.Whether the plaintiff has not come to the court with clean hands? OPD

3.Whether the defendants are entitled to special costs? OPD 4. Whether the plaintiff is entitled to injunction as prayed for? OPP 5. Relief.

6.The trial court after recording of evidence and hearing arguments of the parties decreed the suit vide judgment dated 18.02.2009 with the direction to the petitioner to remove encroachment to the extent of 9 feet upon the disputed street and restored the original passage (disputed street) within one month of the decision.

7.The petitioner/judgment debtor preferred an appeal against the aforesaid judgment & decree before the District Judge Chakwal, which was disposed of vide judgment dated 03.02.2010 in the following terms: - “5. .........Municipal Corporation may proceed firstly by determining the exact measurement of both the houses i.e., appellant and his brothers houses lying on both sides, at the entrance of this Gali, in order to determine who actually is violating the laws and then accordingly, strictly proceeded against that violator.”

8.Respondent No.2/decree holder then filed an execution petition for the satisfaction of judgment dated 03.02.2010, which was dismissed by the executing court vide order dated 04.01.2011 with the following observations: -

“In this order, no direction is given to the trial court or executing court. Direction has been given to T.M.A., therefore, present application is not proceedable which is dismissed. In the light of judgment dated 03.02.2010, present execution petition is also not proceedable. ”

9.The order of executing court dated 04.01.2011 was assailed by respondent No.2 through filing a revision petition, which was accepted by the revisional court vide order dated 06.07.2011 and in consequence whereof, the order dated 04.01.2011 was set-aside, and the matter was remanded to the executing court with the direction to restore the execution petition and proceed further in the light of judgment dated 03.02.2010 passed by the appellate court.

10.During the proceedings of execution petition, the executing court requisitioned reports from TMA and the revenue department, and in the light of reports, disposed of the executing petition vide order dated 30.04.2014 in the following terms: -

“..........as per revenue record and report of TMA as disputed street does not exist. So there is no question of violation of bye laws of TMA. With these observations the application is hereby disposed of.”

11.The order of the executing court dated 30.04.2014 was challenged by respondent No.2/decree holder by way of filing the revision petition, which was disposed of by the revisional Court vide the impugned order dated 21.02.2015 with the following direction: - “7. .......It is held that for the purpose of executing the decree, the decree dated 18.02.2009 passed by learned Trial Court will remain integral part of decree dated 03.02.2010 because, at the costs of repetition, decree dated 18.02.2009 has neither been set aside nor altered, nor modified by learned appellate court. I accept the revision petition and matter is remitted to learned executing court to execute the decree in the light of this decision.”

12.Learned counsel for the petitioner contends that the revisional court while passing the order dated 21.02.2015 has erroneously interfered

with the order dated 30.04.2014 passed by the executing court as the judgments of the courts below have already been implemented. Further submits that the order dated 21.02.2015 was passed without considering the reports of TMA and revenue department, which is a result of gross miscarriage of justice.

13.Learned counsel for respondent No.2 submits that the order of the executing court is not sustainable as specific direction was passed by the learned civil judge to the petitioner while passing the decree dated 18.02.2009 to remove encroachment upon the disputed street. Further contends that the learned revisional court passed the order in the light of judgment passed by first appellate court dated 03.02.2010 and the judgment & decree of the trial court dated 18.02.2009. Adds that the judgment of appellate court and decree passed by the trial court was binding on the executing court and prays for dismissal of the instant writ petition.

14.Arguments heard and record perused.

15.The basic point for determination in this case is the interpretation of the judgment rendered by the appellate Court dated 03.02.2010, in couch whereof, the parties have placed themselves into a second round of litigation before the executing court and revisional court. The confusion has emerged because each party is endeavoring to draw a conclusion from the judgment of the appellate court in accordance with their own whims and interpretations. To my mind, this interpretative controversy must be judicially resolved once and for all, so that the litigation between the parties be settled conclusively, to avoid further litigation.

16.To resolve the controversy in a better way, the judgment of the appellate court dated 03.02.2010 needs to be examined and interpreted. For ready reference, the operative part of the said judgment is hereby reproduced hereinafter:-

“5. .......The actual bone of contention is the width of the Gali/suit property, which instead of having 18/20 feet wide, is left with only 9

feet. Hence, causing disturbance to the residents living at the end of that street. It is also interesting to note that appellant’s house site plan has been sanctioned by the Municipal Corporation which is Ex.D-2 and this fact is admitted by the Municipal Corporation/respondent No.2 that no site-plan can be sanctioned of its bi-law have been violated. The afore-said site-plan appears be dated 9.5.1972. Now, question to be determined is when present house was being built and when site-plan was sanctioned, whether at the time of sanctioning site-plan this property was falling within the jurisdiction of Municipal Corporation in order to attract its bi-laws. Appellant has been consciously silent as to who is the real encroacher, if he is not the one. This is evidence by the fact that he kept raising objection against the TMA but never pointed out that opposite to his house, at the very entrance of this Gali is also another house in which his own real brother resides, who never been made a party to any dispute. In order to resolve the encroachment upon this gali, it is evident to see which of the house on its entrance, where encroachment exists, has actually been the culprit in violating the bi- laws of Municipal Corporation. Although, the appellant has been objecting to the notice of demolition of his property since 2000, yet had never deliberately got implead his own brother as a party, which denotes that the appellant has not come with clean hands and had deliberately tried to diver the attention of Municipal Corporation and the courts. In light of the observations made by this Court, this court has come to conclude that Municipal Corporation may proceed firstly by determining the exact measurement of both the houses i.e. appellant and his brothers houses laying on both sides, at the entrance of this Gali, in order to determine who actually is violating the laws and then accordingly, strictly proceed against that violator.

6.Resultantly, this appeal stands disposed-of with the above observations. File be consigned to the Record Room after its due compilation whereas the record of trial court along with a copy of this judgment be sent back immediately.”

(Underlined for supplying emphasis)

In the relevant part of the judgment, the appellate court employed the term “observations”. Let take a look into this term so as to understand its implication. In legal contexts, the term “observations” refers to comments, remarks, or opinions expressed by a judge in a judgment. These are also known as “obiter dicta” (“things said by the way”). Mere observations in judgments/decisions do not have the force of law and do not create any binding legal precedent. Furthermore, it is settled principle of law that judicial observations are not binding unless they form part of the decision’s reasoning. These observations may provide guidance but do not have the force of law unless they form part of the ratio decidendi (the binding legal reasoning).

17.Black’s Law Dictionary does not provide a direct definition for “observations”, but it defines related terms like “obiter dictum”, which is closely linked, Obiter Dictum (Dicta): “A remark, opinion, or statement in a judicial decision that is not necessary to support the ruling and therefore not legally binding as precedent.

18.Oxford Dictionary of Law, defines judicial “observations” as “remarks or comments made by a judge in a case that do not form a necessary part of the legal decision.” Wharton’s Law Lexicon, describes “observations” as “judicial expressions that may be persuasive but are not legally enforceable.”

19.In this particular case, while rendering the judgment dated 03.02.2010, the appellate Court employed the term “observations” with the phrase “has come to conclude”, and further incorporated another term “disposed of”. These terms and phrase require careful interpretation so as to develop definite understanding of the judgment, which is to be executed. The use of term “observations” alongside “has come to conclude” indicates that, after thoroughly reviewing the facts, legal arguments, and evidence, the appellate court has reached a definite point, an actual bone of contention. Based on these findings, the appellate court’s actions effectively amount to a modification of the trial court’s decree, when, in particular, appellate court indicated root cause of controversy, touching issue of alleged encroachment over a street. Even if the term “modification” has not been explicitly used, any alterations made by the appellate court in the judgment while explaining mechanism and process of determination of defaulting- party and steps to be taken for the enforcement of decree, in a suit for injunction. These observations and findings tantamount to introduce material modification in the original judgment. The trial court directed the petitioner to remove encroachment upon the disputed street, but the appellate court introduced a new procedural requirement: that the municipal department must at first determine the encroacher’s identity before enforcing the decree. This additional but core condition, which imposes a prerequisite to execution,

significantly impacts the nature and enforceability of the original judgment, which is to be executed as a decree.

20.It is a settled principle that substance must prevail over form. The true legal nature of an order is determined by its practical effect, not merely the language used. If an observation alters the mode of enforcement or imposes new obligations, it should be regarded as a modification of the decree, regardless of whether the term “modification” is expressly used. By adding this verification step, the appellate court had changed the rights and obligations arising out from the decree, thereby modifying its scope, extent and enforceability.

21.Another term which was explicitly used by the appellate court in its judgment is “disposed of”.

“The “OXFORD PAPERBACK THESAURUS, INDIAN EDITION” at page 239 shows informal meaning of dispose of as “get shut of”.

According to LAW DICTIONARY ENGLISH-URDU, published by NATIONAL LANGUAGE AUTHORITY, PAKISTAN. ‘Dispose of’

تصفیہ مقدمات کے لیے بھی استعمال ہوتا ہے۔

As per Cambridge dictionary, dispose of means “to get rid of someone or something or deal with something so that the matter is finished”

Taking benefit from the information mentioned supra, in view of this Court, by “disposing of” means that the Court has reached a conclusion or determination on the merits of the case.

22.Now, when it is determined that the observations passed by the appellate court were in fact modifications in the decree of the trial court, now the question arise that whether the appellate court was empowered to make such modifications. Order XLI Rule 33 of the Code of Civil

Procedure, 1908 (hereinafter “CPC”) provides power to the Court of appeal: -

“33. Power of Court of appeal:- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection:

Provided that the Appellate Court shall not make any order under section 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

23.Under Section 107 of the CPC, the appellate court possesses the authority to:

(a)determine a case finally,

(b)to remand a case,

(c)to frame issues and refer them for trial, or

(d)to take additional evidence or to require such evidence to be taken.

(2)Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Court of original jurisdictions in respect of suits instituted therein.

While the term “observation” is not explicitly recognized within these provisions, the practical effect of the appellate court’s findings constitutes a modification of the trial court’s decree, even in the absence of the explicit use of the term “modified” as discussed supra. Crux of the discussion is that by introducing new procedural requirement and altering the terms of enforcement of the decree, these actions substantively changed the original decree, thus constituting a modification in the judgment and decree of the trial court.

24.In view of the above settled principles, when applied to the context of peculiar facts of this case, the appellate court’s observations, which had materially modified the judgment of the trial court and introduced a mechanism for determination of factum of encroachment and enforcement thereof, which for all intent and purposes is modification of

the judgment of the trial court and be read as part and parcel thereof. The decree-holder’s right to immediate execution, granted by the trial court, has been made contingent upon the condition introduced.

25.The Hon’ble Supreme Court of Pakistan in a case of BASHIR AHMED vs. Mst. TAJA BEGUM and others (PLD 2010 Supreme Court 906) while elaborating the scope of appellate court has held as under: - “5. Section 96 of C.P.C. in relevant part provides as under:- “96. Appeal from original decree.---(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.”

This provision enables the appellate Court to take a second look at all legal and factual aspects of a case brought it by a party aggrieved of the judgment of a trial Court. The appellate Court not only can but is required to reappraise the evidence and to thereby reach its own conclusion which may be different from the one arrived at by the trial Court.”

Similar view was affirmed in the case of “M U H A M M A D AKRAM vs. Haji IJAZ AHMED and others (2006 S C M R 946). In “Punjab Industrial Development Board vs. United Sugar Mills Limited” (2007 SCMR 1394), it was further held as under: -

“6. It is also a settled law that Appellate Court has to decide the appeal after independent application of mind and mere reproduction of the judgment of the trial Court and thereafter dismissing the appeal is not in consonance with the law laid down by this Court in Ghulam Mohayyuddin’s case PLD 1964

SC 829.”

The crux of these judgments enunciates that the appellate court was fully competent to independently re-evaluate both the legal and factual aspects of the case. It must not merely adopt the trial court’s reasoning, but instead apply its own judicious mind to ensure that the decree of the trial court reflects a just and fair outcome. When the appellate court finds that the trial court’s order requires adjustment, it has the authority to modify the decree to better align with the principles of justice.

26.Since it has been established that the appellate court modified the judgment of the trial court, so the executing court being the subordinate court was to execute the judgment of the appellate court because the order of the learned civil court merged into the order of the

appellate court under the doctrine of “merger” as elaborated by Supreme Court of Pakistan in a well-known case of Sahabzadi MAHARUNISA and another vs. Mst. GHULAM SUGHRAN and another (PLD 2016 Supreme Court 358) as under: -

“5. From the ratio of the case law cited above (from both jurisdictions), it is clear that the doctrine of merger has been duly applied to the reversal and modification cases and also to all those cases in which the judgment etc. of a lower forum has been affirmed in appeal or revision by a higher forum(s) (Note: though there are certain exceptions to this rule which shall be specified in the concluding part of this opinion). We may like to add here that the rule of merger shall also extend to the writ jurisdiction of the learned High Court(s) where the decisions of the lower fora, such as Tribunals and Special Courts etc. when challenged have been affirmed by the court in exercise of its constitutional jurisdiction.”

27.Nutshell of the discussion is that, the executing court acted within its prescribed limits and in accordance with the law, and no illegality or jurisdictional defect is found in the order dated 30.04.2014. Furthermore, the reports of TMA and revenue department confirm that there was no disputed street present in their record. For ready reference, the relevant extracts of the reports are hereby reproduced as under:- Report of TMA

"ہر دو بھائیوں کی اراضی کے درمیان نقشہ جات کی منظوری کے وقت اکے مطابق گلی وغیرہ خود ساختہ9 موجود نہ تھی جبکہ اس وقت موقع پر دونوں بھائیوں کی اراضی تعمیر شدہ میں سے ناپختہ گلی جو کہ عقب میں واقع دونوں بھائیوں کی ذاتی اراضی و بمعہ دیگر اراضی بمعہ/راستہ مدعی اراضی میں داخل ہونے کے لئے پائی گئی ہے موجود ہے جو کہ تا حال ٹی ایم اے چکوال منظور شدہ نہ ہے اور نہ ہی سابقہ میونسپل کمیٹی(موجودہ ٹی ایم اے) کے پاس مذکورہ/کی ملکیت گلی کا کوئی ریکارڈ ہے چونکہ دو بھائیوں کی مشترکہ اراضی تھی اور بوقت منظوری نقشہ ہائے جات میں کسی قسم کی کوئی گلی دکھائی گئی تھی اور نہ ہی منظور کروائی گئی تھی اور یہ کہ نقشہ جات سابقہ میونسپل کمیٹی کو منظوری کیلئے فراہم کرتے وقت ہر دو بھائیوں کی اراضی آپس میں شماال جنوبا ملحقہ تھی اور یہ کہ منظور شدہ نقشہ ہائے جات بابت تعمیرات کیلئے منظور کی " -گئی

Report of the revenue department

حباندادولدنوراحمدوغیرہ-حجر انصاراحمد-"چونکہ رقبہ مذکورہ باال ہردونمبرات خسرہ کےعالوہ دیگرمالکان اراضی کی بھی ملکیت ہے۔ اسطرح رقبہ مشترکہ مابین فریقین ہے۔ جو رقبہ

دعوی تقسیم دائر کر کے اپنی کمی بیشی پوری کر ٰ گلی میں آیا ہے تو اِسی ضمن میں دیگر ما لکان سکتے ہیں۔ مزید براں اگر گلی کی لمبائی چوڑائی بمطابق موقع مطابق نقشہ منظور شدہ ٹی ایم اے "نہ ہے تو اس بارے میں ٹی ایم اے سے رہنمائی حاصل کی جا سکتی ہے۔

28.It is a well-settled exposition of law that the executing court cannot go beyond the decree; neither can it rescind nor modify the decree/order sought to be executed. 1 Since the administrative departments have unequivocally reported that no disputed street exists, any further proceedings in the matter would be a futile exercise. Consequently, the instant writ petition is allowed, in terms that the order of the revisional court dated 21.02.2015 is hereby set aside, while the order of the executing court dated 30.04.2014 is restored.

(Malik Javid Iqbal Wains) Judge Approved For Reporting

Judge Usman*

MUSHTAQUE AHMED vs. SHAHZAD KHAN (PLD 2024 Supreme Court 960)