1991 S C M R 379 https://www.pakistanlawsite.com/Login/PrintCaseLa...
1991 S C M R 379
Present: Muhammad Afzal Zullah, C.J. and Abdul Qadeer Chaudhry, J
ABDUL BAQI‑‑‑Petitioner
versus
Malik MITHA KHAN and another‑‑‑Respondents
Civil Petition No.144/R of 1990, decided on 18th April, 1990.
(Against the judgment and order, dated 27‑3‑1990 of the High Court of Balochistan,
Quetta, in Miscellaneous Appeal No.550 of 1989).
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 12(2) (added by Code of Civil Procedure (Amendment) Ordinance (X of 1980),
S.2]‑‑‑Constitution of Pakistan (1973), Arts.247(3) &. 185(3)‑‑‑Extension of law to
Tribal Areas‑‑‑Petitioner's application under 8.1.2(2), Civil Procedure Code was
dismissed on the ground that Civil Procedure Code, 1908 as amended by Ordinance X of
1980 had not been extended to Tribal Areas, therefore, such application was not
maintainable‑‑‑Leave to appeal was granted to consider whether Art. 247 of the
Constitution of Pakistan was not attracted to the facts of the case when the Chief Martial
Law Administrator in exercise of his powers under the Laws (Continuance in Force)
Order, 1977, had promulgated Ordnance X of 1980; and whether High Court erred in
holding that Ordinance X of 1980 was not specifically extended to the Tribal Areas.
(b) Civil Procedure Code (V of 1908)‑
‑‑‑‑O. XXXIX, Rr 1, 2 & S.12(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑
Landlord had filed eviction application against petitioner's brother‑‑‑After ejectment
order had been passed against petitioner's brother viz. one of the respondents, petitioner
filed application under S.12(2), Civil Procedure Code, 1908 claiming to be the tenant of
suit premises for the last ten years‑‑‑Petitioner also claimed ad interim injunction against
eviction‑‑‑High Court had pointed out that landlord had filed ejectment application
against respondent in 1988; though petitioner had knowledge of those proceedings, he
did not submit any application for impleading him as a party to those
proceedings‑‑‑Interim injunction was refused to petitioner in circumstances.
Raja Muhammad Anwar, Senior Advocate Supreme Court with Manzoor Elahi,
Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Dates of hearing: 18th April, 1990.
ORDER
ABDUL QADEER CHAUDHRY, J.‑‑‑Leave to appeal has been sought against the
judgment of the High Court dated 27‑3‑1990.
2. The facts, in brief, are that an eviction application was filed by the respondent No.1
Malik Mitha Khan against respondent No.2 Ghulam Muhammad, the brother of the
petitioner, on 18‑3‑1988. The application was accepted by the Civil Judge, Loralai on
30‑3‑1989. The Civil Revision Petition filed by the respondent No.2 was dismissed by
the High Court on 23‑5‑1989. The petitioner Abdul Baqi filed an objection petition
1991 S C M R 379 https://www.pakistanlawsite.com/Login/PrintCaseLa...
under section 12(2) of the Code of Civil Procedure on 10‑7‑1989 before the High Court
which was dismissed on 27‑3‑1990. The High Court has held that the Civil Procedure
Code (Amended Ordinance X of 1980) has not been extended to the Tribal Area
because law can be extended in accordance with Article 247(3) of the Constitution
therefore the application under section 12(2) of the C.P.C. was not maintainable. The
following point of law needs examination by this Court:‑‑
Whether Article 247 of the Constitution of Islamic Republic of Pakistan was not
attracted to the facts of the case when the C.M.L.A. in exercise of his powers under the
Laws Continuance in Force Order, 1977 (Order No.1 of 1977) had promulgated the
Ordinance X of 1980; and whether the High Court erred in holding that Ordinance X of
1980 was not specifically extended to the Tribal Area.
3. It is a case of first impression that a point of constitutional interpretation is involved in
this petition. Leave is granted and the matter may be placed before a larger Bench for
resolving the aforesaid question. Security Rs.5,000.
4. Learned counsel has also submitted that pending hearing of this appeal, status quo
with regard to possession may be maintained.
5. The order of the High Court shows that the petitioner had full knowledge about the
pendency of the eviction proceedings. On certain occasions he had also submitted
application on behalf of respondent No.2 seeking adjournment of the case. The
contention of the petitioner in his application under section 12(2) of the C.P.C. is that he
was a tenant in the suit premises for the last 10 years according to the tenancy agreement
executed on 19‑3‑81. It may be pointed that the respondent No.1 had filed ejectment
application against the respondent in 1988. Though the petitioner had the knowledge of
those proceedings he did not submit any application for impleading him as a party to the
said proceedings. We, therefore, in these circumstances, decline to grant interim relief to
the petitioner.
A.A./A‑761/S Leave granted.
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