EVACUEE TRUST PROPERTY BOARD through the Deputy Administrator, Evacuee Trust Property, Sahiwal vs MUHAMMAD AZAM and 2 others

ORDER

' MUHAMMAD RAFIQ TARAR, J.---This petition for leave to appeal by Evacuee Trust Property Board has arisen out of a suit instituted by respondent No, 1 for a declaration to the effect that he was owner in possession of share measuring two Marlas in House No, 224/B-II Parnami Mohallah, Sahiwal, and order of the Additional Settlement Commissioner dated 19-5-1961 declaring the said house as evacuee trust property was null, void, illegal and without jurisdiction. Permanent injunction was prayed for as a consequential relief. During the pendency of the suit the defendant/petitioner herein moved an application under Order VII, Rule 11 read with section 151 of the C.P.C. For rejection of the plaint on the ground that it was time-barred and Civil Court had no jurisdiction in the matter. After hearing the counsel for the parties the learned Civil Judge observed that the dispute in the suit was regarding the nature of the property and the Chairman of the Evacuee Trust Property Board had the exclusive jurisdiction to determine this question as the jurisdiction of the Civil Court is expressly barred under section 14 of the Act XIII of 1975. He, therefore, allowed the application and rejected the plaint under Order VII, rule 11 of the C.P.C. The respondent No, 1 herein challenged this order in the District Court. His appeal was allowed by the Additional District Judge and the case was sent back to the Civil Court with a direction to decide the same on merits after recording evidence of the parties. The Revision Petition filed by the Evacuee Trust Property Board in the High Court failed vide judgment dated 15-3-1993 and hence this petition.

2. The reason which mainly weighed with the learned Single Judge for upholding the order of the Additional District Judge is that "propriety demands that now when the litigation has spread over several years and all the issues in the light of the pleadings of the parties have been fixed for final determination, the matter be permitted to proceed, so that it is decided on merits, and I do not think the exercise will take long".

3. Learned counsel for the petitioner inter alia contends that the learned Civil Judge was under an obligation to reject the plaint under Order VII, A rule 11, of the C.P.C. As from the statement in the plaint the suit appeared to be barred by law and the observation made by the Additional District Judge that the Court had framed the issues and should decide the matter, which was affirmed by the High Court, is contrary to law. It is submitted that the jurisdiction of the Civil Court having been expressly barred under a special enactment, the learned Civil Judge could not take cognizance of the matter in view of section 9 of the C.P.C. And his order rejecting the plaint is unexceptionable.

' After hearing the learned counsel we grant leave to appeal to consider the above contentions. The proceedings in Court below are stayed meanwhile.