Stay without orders | filing a petition does not automatically stay proceedings unless a specific injunctive order is granted.
filing a petition does not automatically stay proceedings unless a specific injunctive order is granted.
اس سپریم کورٹ آف پاکستان کے فیصلے میں ایک سول پٹیشن کی تفصیلات دی گئی ہیں جو عبوری احکامات کو چیلنج کر رہی تھی۔ پٹیشنرز نے لاہور ہائی کورٹ کے فیصلے کو چیلنج کیا تھا، جس نے ان کی رٹ پٹیشن کو مسترد کر دیا تھا۔ سپریم کورٹ نے ہائی کورٹ کی فیصلے کو برقرار رکھا اور واضح کیا کہ آئینی دائرہ اختیار صرف اس صورت میں استعمال کیا جا سکتا ہے جب کوئی دائرہ اختیار کی خلاف ورزی ہو، نہ کہ صرف صوابدیدی فیصلوں کو چیلنج کرنے کے لیے۔
اہم نکات:
1. عبوری احکامات عام طور پر فوری اپیل کے قابل نہیں ہوتے جب تک کہ وہ واضح طور پر دائرہ اختیار کی خلاف ورزی نہ کریں۔
2. آئینی دائرہ اختیار صرف ان احکامات کے لیے مناسب ہے جو بغیر دائرہ اختیار کے ہوں، نہ کہ صرف صوابدیدی فیصلے کے لیے۔
3. عدالت نے کیس میں تاخیر اور طویل کارروائی کے مسائل کا ذکر کیا، جو پٹیشنرز کی وجہ سے ہو رہے تھے۔
4. عدالت نے اس بات کی وضاحت کی کہ درخواست دائر کرنے سے خودبخود کارروائیوں کو روک نہیں دیا جاتا جب تک کہ مخصوص injunctive حکم نہ دیا جائے۔
یہ فیصلہ قانونی عمل کی مؤثر کارکردگی کی ضرورت کو اجاگر کرتا ہے اور رکاؤٹوں اور التواء کے غلط استعمال کے خلاف تنبیہ کرتا ہے۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present
Mr. Justice Yahya Afridi
Mr. Justice Amin-ud-Din Khan
Mrs. Justice Ayesha A. Malik
Amin-ud-Din Khan, J. Through this petition filed under Article
185(3) of the Constitution of Islamic Republic of Pakistan, 1973 leave has
been sought against the order dated 30.01.2018 passed by the Lahore
High Court whereby Writ Petition No. 40075/2015 filed by the petitioners
was dismissed.
Civil Petition No.925-L of 2018
Against the order dated
30.01.2018 passed by the Lahore
High Court in W.P.No. 40075 of
2015.
When a party challenges any interim order during the pendency of
a suit under revisional jurisdiction or constitutional jurisdiction vested
in the revisional court or the High Court, we are of the view that the court
has to exercise the jurisdiction keeping in view that it is an interim order,
as eveiy interim order need not to be challenged at that stage because it
Syed Muhammad
Khurshid, Sr.ASC.
2. Petitioners-defendants moved applications for summoning
revenue officers etc as witness, same were dismissed vide order dated
2.3.2013, which was challenged through revision petition and revision
also met with the same fate. They challenged the said two orders of the
trial court and the revisional court through constitutional jurisdiction of
the High Court under Article 199 of the Constitution of Islamic Republic
of Pakistan, 1973. The writ petition was also dismissed
*
Civil Petition No. 925-L of
2018
is now settled that when a suit is finally decided by the trial court, all the
interim orders become open in appeal, if there is a defect in the interim
order that is open to scrutiny at the stage of final appeal, as the first
appeal is continuation of a trial and first appellate court is a court of fact
and law. But, if a party to the suit opts to challenge an interim order
when it is passed through appellate jurisdiction, revisional jurisdiction or
constitutional jurisdiction, while exercising such jurisdiction the scope of
jurisdiction vested in the Court must be in the view of the party
challenging the same and we expect that while dealing with the interim
order the court must also keep in view the scope of jurisdiction to
scrutinize the interim orders.
4. We are clear in our mind that when a party comes to the High
Court in constitutional jurisdiction, he is bound to show that the order
challenged through the constitutional jurisdiction is without jurisdiction
then the High Court can exercise the constitutional jurisdiction to declare
the order as such. When an order has been passed while exercising
discretion, the same cannot be declared by any stretch of imagination to
be without jurisdiction, therefore, the High Court has rightly exercised
the jurisdiction while dismissing the writ petition as the orders impugned
before the High Court were with jurisdiction while exercising discretion in
favour of the vigilant party.
5. We have gone through the report submitted by learned Civil Judge
Class, Ferozewala whereby it is stated that when the Civil Revision
was pending, the learned revisional court ordered for restraining the Trial
Court from pronouncement of final judgment but the learned trial court
sine die adjourned the proceedings of the case vide order dated
25.03.2013. Thereafter, the learned trial court restored the proceedings
of the suit when again the present petitioners-defendants filed an
application for sine die adjournment of the case on the ground that
matter is pending adjudication before the Supreme Court of Pakistan but
their application was dismissed on 24.10.2023 and now matter is fixed
for filing of reply to application for setting aside the exparte proceedings
filed on behalf of defendant Nos, 53, 54 and 55 vide report forwarded by
learned District 8b Sessions Judge, Sheikhupura. We have further noticed
that the suit was filed on 27.05.2004 which is still pending and due to
the petitioners-defendants matter is being delayed. When confronted with
the learned counsel for the petitioners that whether the witnesses i.e.
Ciinl Petition No. 925-L of
2018
Patwari who entered the mutation in the year 1956 challenged through
the suit are alive or not, learned counsel is unable to state that whether
they are alive or not. In these circumstances, we cannot disagree with the
learned High Court when the learned High Court has dismissed the wnt
petition when there was no jurisdictional defect in the orders passed by
the fora below. In view of the above, no case for grant of leave is made
out. Resultantly, leave is refused. Petition stands dismissed.
6. Before parting with this judgment we deem it necessaiy to
comment upon the eventuality which is repeatedly being seen in the
proceedings of various cases, when the matter is pending before the High
Court or this Court, the learned trial court on the move of any of the
parties or even without reference of any of the parties stays the
proceedings of the trial court or the proceedings of the execution or sine
die adjourn the same in order to wait for the final determination or
decision of the Court. In the instant matter original applications, subject
matter of this petition, were dismissed by the learned trial court on
2.3.2013 whereas revision petition was dismissed on 6.11.2015 and the
writ petition was dismissed on 30.1.2018 and this CP is pending before
this Court since the year 2018, when it was fixed for hearing, learned
counsel for the petitioners sought adjournment, therefore, we sought
report from the learned trial court and it was reported that the learned
revisional court vide order dated 11.3.2013 restrained the learned trial
court from pronouncement of final judgment and the learned trial court
vide order dated 25.3.2013 sine die adjourned the file of the suit.
Subsequently, on 25.09.2019 the learned trial court’s file was restored.
Again an application to sine die adjourn the case was filed on behalf of
the defendants/petitioners herein with the contention that the matter is
pending adjudication before the august Supreme Court of Pakistan and
the said application was dismissed by the learned trial court vide order
dated 24.10.2023 and matter is now pending before the learned trial
court for setting aside the exparte proceedings against defendant Nos. 53,
54 and 55. It is vide report of the learned trial court dated 26.02.2024.
Order XX Rule 1 of the Supreme Court Rules, 1980 deals with the
eventuality in hand, which is reproduced
“The filing of a petition for leave to appeal or an appeal shall
not prevent execution of the decree or order appealed
against, but the Court may, subject to such terms and
conditions as it may deem fit to impose, order a stay of
Civil Petition No. 925-L of2018
APPROVED FOR REPORTING.
Islamabad
29 April 2024.
Mazhar Javed Bhatti
execution of the decree or order, or order a stay of
proceedings, in any case under appeal to this Court.”
It clearly shows that the execution proceedings as well as the proceedings
before the learned trial court do not automatically stay when the petition
is filed before this Court unless an injunctive order is granted by this
Court. When the injunctive order is not granted by this Court the parties
to the proceedings applying for stay of the proceedings or execution
without any injunctive order from this Court and in some eventualities
we have seen that after refusal of injunctive order from this Court the
parties to the proceedings before the learned trial court apply for stay of
execution or proceedings in the suit which is not only a clear cut abuse of
process of law but it is contempt of court. We observe that if this practice
is carried on by the parties or even learned trial court while ignoring all
these factors i.e. sine die adjourning the proceedings or stays the
proceedings of the suit without any injunctive order, will face the
consequences of said illegal order.
MashaAllah great
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