Hamayun Khan etc Vs Raja Muhammad Ayaz

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

W.P.No.267-A/2017.

JUDGMENT

Date of hearing......13.7.2017.......................................................... Petitioner (Hamayun Khan) by Qazi Obaid ur Rehman, Advocate.

Respondent (Raja Muhammad Ayaz etc) by M/S Sajjad Ahmad Abbasi and Zakir Paul Hussain, Advocates.

SYED ARSHAD ALI, J:- Hamayun Khan, the

petitioner through instant petition has challenged the order dated 24.2.2017 of learned Additional District Judge-III, Abbottabad and alleges that the learned Judge while deciding revision petition filed by Raja Muhammad Ayaz against the order dated 04.2.2017 of learned Executing Court, has not allowed the petitioner to argue and assist the Court and resultantly revision petition against the same order was illegally accepted.

2.Brief but essential facts of the case as alleged in the petition are that Raja Muhammad Ayaz, respondent No.1 being owner of land measuring 04 kanals 11 marlas situated in Mauza Jhangi Tehsil and District Abbottabad through registered deed 16.6.2001 given the property to M/S Shell Pakistan Limited for the purpose of establishing Petrol Pump. Through another

agreement dated 12.8.2011 (Retail Franchise Fee Agreement) M/S Shell Pakistan Limited appointed Raja Muhammad Ayaz respondent No.1 as authorized retailer through on the terms and conditions mentioned in the said agreement. M/S Shell Pakistan Limited through letter dated12.5.2015 terminated Retail Franchise Fee Agreement with Raja Muhammad Ayaz, respondent No.1. Subsequently, the petitioner Hamayun Khan was appointed as retailer for Madina Filling Station vide agreement deed dated 03.6.2015. The respondent No.1 Raja Muhammad Ayaz did not challenge the said termination of his franchise agreement.

3.Record further reveals that Raja

Muhammad Ayaz through agreement had handed over possession of the Petrol Pump on the terms and conditions mentioned in the aforesaid agreement.

Respondent No.1 had filed an ejectment petition before Rent Controller of Residence Cantonment Board, Abbottabad against Syed Murtaza Hussain Shah. The learned Rent Controller vide order dated 11.3.2015 passed ejectment order against Syed Murtaza Hussain Shah. Accordingly respondent No.1 Raja Muhammad Ayaz filed an application for execution before the Executing Court. Syed Murtaza Hussain Shah challenged

the aforesaid order of ejectment before this Court through F.A.O.No.10-A of 2015, which was dismissed by this Court vide order dated 29.5.2015, wherein the appellant Syed Murtaza Hussain Shah was directed to vacate the premises before 11.6.2015. On 01.7.2015 M/S Shell Pakistan Limited challenged the order of this Court dated 29.5.2015 through a petition under section 12 (2) of the Civil Procedure Code which was latter withdrawn on 25.3.2016. The petitioner as well as M/S Shell Pakistan Limited filed their separate objection petitions before Executing Court praying for dismissal of execution petition on the ground mentioned in their objection petitions. Raja Muhammad Ayaz contested both the applications by filing his replies. The learned Executing Court after hearing both the parties on preliminary objection raised by respondent to the maintainability of objection, vide order dated 14.6.2016 the learned Executing Court dismissed the objection petition filed by Shell Pakistan Limited, whereas objection filed by present petition Hamayun Khan framed issues and directed the parties to produce their respective evidence and ordered that if execution petition are stayed accompanied with OP.

4.Raja Muhammad Ayaz respondent No.1

filed another application for dismissal of objection petition filed by Shell Pakistan Limited on the ground that the same has not been competently filed. The learned Executing Court on 27.7.2016 upheld the objection petition filed by M/S Shell Pakistan Limited. M/S Shell Pakistan Limited challenged the said order through Civil Appeal 48/13 of 2016 before learned District Judge, Abbottabad, which was assigned to learned Additional District Judge-III, Abbottabad for disposal, who accepted the appeal on 16.1.2017 and remanded the case back to the learned Executing Court with the direction to proceed with the same in accordance with law and decide the same after recording evidence. At the end of his order learned Additional District Judge-III, Abbottabad has passed certain observations. Since such observation had led to the present controversy, therefore, needed to be reproduced below:

“Needless to mentioned that my this judgment should not be considered in a manner so as to impose any restriction on the jurisdiction of executing court to proceed with the execution proceedings as both can run simultaneously and possession of the decreed pump can be handed over to respondent No.1 subject to the decision of objection petition. Original file be send back to learned trial Court forthwith. Parties are directed to appear before the learned trial court on 19.1.17. No order as to

cost. File of this court be consigned to the record room after necessary completion.”

5.This observation promoted Raja

Muhammad Ayaz respondent No.1 to file an application for possession of the demise premises before the learned Executing Court. The learned counsel for Raja Muhammad Ayaz argued before Executing Court that in view of aforesaid observation the Executing Court should pass order for delivery of possession. The learned Executing Court vide order dated 04.2.2017 dismissed the same being premature. Aggrieved from the aforesaid order Raja Muhammad Ayaz filed revision petition before learned District Judge, Abbottabad, who assigned the same to learned Additional District Judge-III, Abbottabad for disposal. Despite the fact that counsel for respondents appeared before the Court and they were refused audience of learned Additional District Judge and confined only to the interpretation of his earlier observations while passing the order dated 16.1.2017 and has held that;-

“5.The portion of cited judgment is clarified as under:- Possession of the Shell Pump situated opposite to the PC Hotel Mansehra Road, Abbottabad, in respect of which execution petition No.16/10 of 2015 titled as Raja Muhammad Ayaz versus Syed Murtaza Hussain Shah is pending, be handed over to the decree holder/petitioner

forthwith subject to the condition that if the objection petition is decided against the present petitioner then possession would be taken back from him and would be delivered to the party entitled to it. It further implies that with the mere pendency of objection petition, the execution proceedings cannot be allowed to remain suspended.”

6.The petitioner also challenged the said order through an application for review but could not succeed and his review petition was dismissed vide order dated 27.2.2017.

7.The learned counsel appearing on behalf of respondent No.1 at very outset, raised twofold preliminary objections, first that present petition is not maintainable as the petitioner Hamayun Khan vide special power of attorney has not authorized Shoaib Khan to file constitution petition before this Court and the power of attorney available on file is only for proceedings before Civil Court, Sessions Court and High Court. The said power of attorney is also not attested from Oath Commissioner or Notary Public; secondly the petitioner has failed to challenged the order dated 16.1.2017 of learned Additional District Judge-III, Abbottabad, whereby the aforesaid observations were made and only order dated 24.2.2017 and 27.2.2017 have

been challenged wherein only order dated 16.1.2017 was clarified.

8.Learned counsel appearing on behalf of petitioner has contended that lower Court has committed great injustice to him and erred while not allowing the counsel for petitioner to argue the case and further stated that the Additional District Judge-III, Abbottabad while hearing revision petition against the order of Executing Court, whereby application of respondent No.1 for handing over him possession was dismissed. The Revisional Court has no authority to interpret his earlier observation which was otherwise clear and was appreciated by Executing Court.

9.Arguments heard and record perused.

10.With irks this Court is that in the

impugned order the Revisional Court has refused to give opportunity of hearing to the present petitioner as well as M/S Shell Pakistan Limited. In any judicial proceedings when the Court seized of a matter finally adjudicating upon the rights of the parties is required to give full opportunity of hearing to the contesting party. This principal is not only embodied in almost in every statute but century old golden principle of administration of justice.

11.Although the order dated 16.1.2017 has not been challenged before this Court, however, it is observed that while passing the said order, the learned Revisional Court was only seized of a matter which was whether petition filed by M/S Shell Pakistan Limited, was competent or not. It is settled principle of law that the Court can adjudicate upon which is brought before it and he cannot dilated upon of issue, which is not before it. The above observation was obviously, was not the mandate of learned Additional District Judge-III, Abbottabad. The perusal of impugned order reveals that learned Revisional Court has not given any finding on the issues decided by learned Executing Court vide order dated 04.2.2017 and has rendered interpretation of his observation already recorded in his order dated 16.1.2017. The explanation rendered by learned Additional District Judge-III, Abbottabad does not appear to be true interpretation of his earlier observation. The perusal of his earlier observation shows that learned Executing Court has the authority to pass an appropriate order for handing over the possession of the demise premises to respondent No.1, however, in no way it is definable from the said order that mandatory directions were given to the learned Executing Court to hand over

possession of the demise premises. Hence, the impugned order is illegal and incorrect and also suffers from jurisdictional errors.

12.Now to deal with the preliminary objection regarding the power of attorney that through the said power of attorney Shoaib Khan has not been authorized to file the instant writ petition. Perusal of the said power of attorney shows that it was executed on 06.3.2017 and the writ petition was filed on 09.3.2017, which means this power of attorney was executed for the purpose of filing the present writ petition. Furthermore, the said power of attorney contained the following words; من مظہر اپنے برادرز حقيقی شعيب خان ولد ثنار خان سکنہ گلبرک ٰٹاون خانيوال کو اختيار ديتا ہوں کہ وه مزکوره فلنگ اسٹيشن کے تمام تر عدالتی معامالت نبھالے اس ہای کورٹ وغيره، سيشن،کيس ميں عدالت ہاے سول ميں پيش ہومن مظہر کی طرف سے وکالت نامہ دائر کرے۔

13.Hence, perusal of power of attorney shows that it was for the filing of present petition. The other objection that power of attorney has not been attested has also no force as this power of attorney is only for the

purpose of filing/pursuing Courts and does not create any title over any immovable property, therefore, is not required to be attested.

14.In view of the above, this writ petition is accepted, the impugned orders set aside and remanded the case back to the learned District Judge, Abbottabad who shall either himself decide the case or shall assign it for disposal to any other Additional District Judge, Abbottabad except Additional District Judge-III, Abbottabad, who already decided the impugned revision petition. Order accordingly.

Announced. JUDGE Dt.13.7.2017.

Aftab/*