Rashid Ahmad and others vs Nazar Hussain and others

ORDER

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 sough against the judgment dated 26.09.2013 passed by the learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur whereby Civil Revision No. 419 or 2003 filed by the petitioners was dismissed.

Brief facts of the case are that plaintiffs-petitioners filed a suit for declaration. With other reliefs, they also challenged the proceedings conducted by the consolidation authorities. Respondents- defendants opted to move an application under Order VII, Rule 11 of the C.P.C. for rejection of the plaint on the ground that in the suit the orders of consolidation officers have been challenged and prayer for setting aside of orders of consolidation authorities has been made, therefore, the suit is not proceedable and be rejected. The reply was filed whereby it was pleaded that in addition to other prayers, it has been challenged in the suit that the consolidation officers cannot set aside the registered sale deed in favour of plaintiff and they cannot cancel the mutations yet they virtually set aside the registered sale deed and cancelled the mutations, therefore, the civil court has jurisdiction to entertain and try the suit. The learned civil court was pleased to reject the plaint vide order dated 5.5.2000. The petitioners preferred an appeal which too was dismissed vide order dated 3.7.2003, same was the fate of the revision petition filed by the petitioners through the impugned order dated 26.9.2013. Notice was issued vide order dated 8.9.2017 passed by this Court.

Hence, we have heard the learned counsel for the parties at length.

2. In the suit it is claim of the plaintiffs-petitioners that they purchased the suit land measuring 23 kanals and 12 marlas from the predecessor of the defendants-respondents through registered sale deed dated 14.3.1957 whereas mutation No. 677 was attested on 5.6.1957. It is pleaded that the revenue authorities have reduced the area and with regard to 13 kanals and 10 marla a Wanda in the name of defendants-respondents was created whereas after selling the land in favour of the plaintiffs the predecessor of the defendants became landless, therefore, mutation No. 86 regarding inheritance of predecessor of defendants was also challenged. The decisions of the fora below are based on section 26 of the Consolidation of Holdings Ordinance, 1960 which ousts the jurisdiction of the Civil Court. Section 26 of the Consolidation of Holdings Ordinance, 1960 barred the jurisdiction of the Civil Court. The relevant portion is reproduced for further benefit and ready reference as under:-

26. Jurisdiction of the Civil Courts, barred as regards matter arising under this Ordinance.---No Civil Court shall entertain any suit or application to obtain a decision or order in respect of any matter which Government or the Board of Revenue or any other officer is by this Ordinance, empowered to determine, decide or dispose of.

In the case of Muhammad Yaseen v. Province of Punjab and others (2009 SCMR 753) it was held:-

6. Even if not expressly ousted, the jurisdiction of the Civil Court was barred impliedly. This Court in case of Ghulam Qadir v. Member, Board of Revenue, West Pakistan, Lahore and 4 others 1970 SCMR 292 has held that the jurisdiction of Civil Court is barred under section 26 of the Ordinance, even if allegations are made in a suit that decision has been obtained by fraud and misrepresentation. Civil Court being the Court of plenary jurisdiction, can enquire into the question whether decision of Special Tribunal is based on fraud and in case it is so, it has the jurisdiction to declare the same to be void. In another case Muhammad Jamil Asghar v. The Improvement Trust Rawalpindi PLD 1965 SC 698, this Court has laid down that the order of administrative authority based on the existence of certain circumstances, Court can make an enquiry and declare this order of such authority to be void if such circumstances are not found to exist and Civil Court's jurisdiction with respect to mala fide can never be taken away. But in the matter, where the question of fraud, misrepresentation or want of jurisdiction is missing, the Civil Court lacks its jurisdiction to adjudicate upon the same.

Further in the case of Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others PLD 1997 SC 3) it has been categorically ruled:- It is a well-settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well- settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunals and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court.

(Emphasis added)

In the instant case, the Civil Court failed to examine the jurisdictional issue within above stated parameters. Furthermore, there are more than one prayers as mentioned in the head-note of the plaint; a declaration of B ownership on the basis of registered document which was followed by a mutation is sought, and ignoring the said document by the consolidation authorities, prima facie, shows that they travelled beyond their jurisdiction. Further it is settled now that partial rejection is not permissible under the law. Further, if with regard to any one prayer the jurisdiction of the civil court is barred and with regard to other prayers it is not, the plaint cannot be rejected. In the instant matter when there are other prayers also the rejection of plaint was not justified by the civil court, therefore, all three fora below fell in error while rejecting the plaint. We grant leave and convert this petition into an appeal and allow the same, the impugned order is set aside. The result would be that the suit will be deemed to be pending before the Civil Court. It is expected that the learned Civil Court will decide the suit within four months after receipt of copy of this order.