TMA Haripur Vs Raja Khan etc

PESHAWAR HIGH C OU RT. ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

GMENT SHE T

FAO No.37-N2021 alonqwith CM No.5-N2023. Date of hearing: ..............27.02.2023... ...... ... .... a Petitioners (TMA Haripur) By Mr. Rala Yasir Ayaz Kiyani, L Advocate.

Respondents (Raja Khan etc) By lV/S Chaudhry l\/uhammad Younas & Shahbaz Khan, Advocates,

FAZAL SUBHAN J.- lm pugned is the order/judgment dated 23.06.2021 passed by the leamed Additional District Judge-I, Haripur, vide which the right of appellants/defendants was struck off to the extent of filing written statement and reply to the application for temporary a injunction and confirmed status quo order in favour of the respondent.

2.Brief facts of the case are that the respondenVplaintiff filed suit No.4/1 before the Tribunal Established under the Khyber Pakhtunkhwa, public property (Removal of Encroachment) Act, 1 977 (Act), against the appellantsi defendants for declaration and permanent injunction and to the effect that he is owner and in possession of khasra No. 681 to the extent

possession ofkhasra No. 681 to the extent of 2-kanal and 12 marla situated Mouza Serian Dharam Pani Tehsil & District Haripur and that the notice dated 02.07 .2017 issued by appellant/defendant No.1 is wrong, illegal and ineffective upon his rights and is liable to cancellation, with further decree for permanent injunction against the appellants/defendants from interfering in the property, changing its nature or converting it into a thoroughfare.

3.After institution of suit, appellants/defendants were summoned ? who put appearance and case was fixed for filing of written statement and reply to the injunction application. Since the appellant did not file written statement despite specific order dated 10.06.2021, their right of filing written statement and reply was struck off by learned trial Court/Additional District Judge-1, Haripur vide order dated 23.06.2021, hence, giving rise to this aPPeal.

4.I have heard arguments of leamed counsel for the parties and have considered the record.

5.The contents of plaint reveals that the respondent was served with a notice dated 01.10.2017 under the Act for removal of alleged encroachment, which prompted him to challenge the same before the Tribunal, whereafter, appellantsi defendants were summoned and case was fixed for hling of written statement/reply vide order dated 15.02.2021. Thereafter successive adjournments were granted to the 9 appellants/defendants but they failed to comply the court orders for doing the needtul. On 27.05.2021, when again request for filing written statemenVreply, was made, the Tribunal granted adj ournment for the last time but similar request was again made on 10'06'2022' On the crucial date, again application for adjoumment was fi1ed and thus the right to file written statement was strike down under order VIII rule 10 CPC and status

quo order was confirrned in favour of respondent/plaintiff. Thus record depicts that sufficient oppofiunities for compliance of court's direction to file written statement and reply were granted which were not availed, thus on merit no justification or sufficient cause was shown by the appellants/defendants for setting aside the impugned order.

6.On legal side too, it is observed that the right of appeal is creation of statute. Such right can be available to a litigant when the law specifically confers a any right of appeal, however, when the statute by itself does not provide the right of appeal, then other remedies available under the general law or constitution can be pressed into service. On close scrutiny of the Act, it is clear that when order in writing directing a person to vacate a public property and to remove structure within specihed period is passed/issued, an aggrieved person may file a suit before a Tribunal established under section 12 of the Act as per procedure laid down under

Rule 9 of the Khyber Pakhtunkhwa (Removal of Encroachment) Rules, 1981 (Ruies). Section 13 of the Act has conferred exclusive jurisdiction upon the Tribunal for determination of dispute that any property 15a public property or otherwise, whereas Section 1 1 of the Act bars the jurisdiction of Civil courls in such matters. By virtue of Section 14 of the Act, the Tribunal has to decide the suit or application as per prescribed procedure whereas sub section 2 of section 14 gives finality to the orders Passed bY the a Tribunal in respect of the controversy under the Act. The relevant Section 14 (I) and (2) are reproduced below for better appreciation: -

14.Procedure and Powers of the Tribunal. --- (1) A Tribunal shall decide any suit or aPPlication in such manner and in accordance with such procedure as maY be prescribed.

(2). Any order made bY the Tribunal which conclusivelY determines the rights of the parties with regard to all or anY of the matters in controversY under this Act, shall be final and binding on the parties.

7.From careful analysis of S.14 (2) ofthe Act it is clear that any orders passed by the Tribunal which conclusively decide the rights of the parties with regard to all or afly matters in controversy under the Act shall be final and binding upon the parties. The Act has not provided any right of appeal against the orders conclusively deciding the controversy or any other matter relevant thereto, hence no right of appeal IS available to the appellants/defendants and therefore appeal fi1ed against the order of striking down the rights of filing written statement a is not maintainable. In this respect reliance is placed on the case 1aw titled Gul Taiz Khan Marwat Versus the Registrar, Peshawar High Court, Peshawar and others reported in PLD 2021 SC 391 as following: -

"---- ParticularlY in lbrahim's case supra, wherein the question was whether an aPPeal was maintainable under Section l5(1) of the West Pakistan Rent Restriction Ordinance' 1959 against an order conlaining a finding about the existence of

relationship of landlord and tenant, it was held that:

"lt is well settled principle that right of appeal is a creature of the statute and it is not to be assumed that there is right of appeal in every matter brought before a Court .fo, its consideration. The right ls expressly given by a statute or some authority equivalent to a statute such as a rule taking the force of a statute. Therefore, existence of right of appeal cannot be assumed on any a priori ground. This is in sharp contrast with the right to sue..."

8.As far as the CM application for early fixation of titled appeal is concemed as the main appeal of the petitioners has been fixed and decided todav, therefore, the instant CM has become infiuctuous, hence dismissed accordingly.

8.For the above reasons, the aPPeal in hand being not maintainable, 1S dismissed.

Announced

Date of writing judgment

Mu h a mma d Ta riq Sle n og raqhe r l-----"--

JUDGE