TARIQ HUSSAIN Versus THE ESTATE OFFICER

1. The case is fixed only for hearing of Misc. application. However, with the consent of the learned counsel for the parties I have heard the main Revision and it is disposed of as under: ‑

2. The plaintiff's suit has been dismissed under Order VII, Rule 11, C . P. C . by the Courts below on the ground that the jurisdiction of the Civil Court is barred under sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. It is contended by the learned counsel for the applicant that rejection of the plaint by the Courts below is wholly unlawful and as from the averments made in the plaint it cannot be said that the suit was barred under sections 10 and 11 of the Ordinance, referred to above. Sections 10 and 11 of the Ordinance relied by the Courts below read as follows:‑

3. "10. Jurisdiction of Civil Court barred.‑‑ No Civil Court shall pass an order in any suit or proceeings granting a temporary or interim injunction restraining the Central Government or any officer authorised by it from taking possession of any land or building under this Ordinance.

11. Indemnity.‑‑(I) No suit or legal proceedings shall lie against Central Government in respect of anything which is, in good faith, done or intended to be done under this Ordinance.

(2) No suit, prosecution or other legal proceedings shall lie against any person in respect of anything which is, in good faith done or intended to be done under this Ordinance."

4. A reading of above provision will show that jurisdiction of the Civil Court is barred only from granting a temporary and interim injunction restraining Central Government or any officer authorised by it from taking possession of any land or building under the Ordinance. There is no ouster of the jurisdiction of the Civil Court in so far as the examination of the vires of an order passed by a functionary under the Ordinance is concerned. In the suit instituted by the applicant the allegations are that the notice dated 25‑9‑1984 issued by the respondent is arbitrary, illegal, void, ab initio without lawful authority and in excess of jurisdiction. If such allegations are established the Civil Court can certainly grant the relief claimed with regard to the declaration and permanent injunction in the suit. The learned Courts below while rejecting the plaint under Order VII, Rule 11, C.P.C. took into consideration the contentions raised by the respondent before them that the allotment in favour of the petitioner has been cancelled and as such he is unauthorised occupant of the premises. This contention raised by the learned counsel for the respondent cannot be the basis for rejection of the plaint under Order VII, Rule 11, C.P.C. as the Court while rejecting the plaint under Order VII, Rule 11, C.P.C. must confine itself to the consideration of averments made in the plaint. The plea raised by the defendant in defence cannot be ground for rejection of the plaint under Order VII, Rule 11, C . P. C and as from the contents of the plaint it does not appear that the suit is barred under sections 10 and 11 of the Ordinance the learned Courts below should have withheld the decision on this issue until the trial of the suit. I accordingly accept this Revision Application, set aside the order of the Courts below and remand the case back to the trial Court for diposal according to law. As a result of the remand the interim application for grant of injunction shall be deemed to be pending before the trial Court which will be disposed of in accordance with the law. There will be no order as to costs.

5. H . B . T . /S‑137/ K Revised accepted.