SAMIULLAH and another vs FAZLE MALIK and another

ORDER

' MUHAMMAD BASHIR KHAN JEHANGIRI, J.-- This petition for leave to appeal is directed against the judgment of Peshawar High Court, Peshawar, dated 16-4-1995 whereby the order of respondent No,2 non-suiting respondent No,1 on the ground of bar of jurisdiction of the Civil Courts under section 21 of the N.-W.F.P. Waqf Properties Ordinance, 1979 (hereinafter called as the Ordinance) by the trial Court and maintained by the Appellate Court was reversed and the suit was remanded to the trial Court for recording evidence 'on the controversial facts' after the written statement is filed by the defendants.

2. Respondent No,1 filed a suit in the Court of Senior Civil Judge, Peshawar, for a declaration that he was a lessee of a shop situate in Namak Mandi, Peshawar City, owned by respondent No,2 on the basis of lease deed dated 1-4-1992; and that the order of cancellation of the lease deed dated 19- 1-1993 and that in appeal dated 24-4-1993 passed by defendant No,1was "violative of the law and mala fide". Another relief claimed was of permanent injunction so as to restrain respondent No,2 from dispossessing him from the disputed shop. Samiullah and Naveedullah, petitioners herein, were arraigned as defendants in the suit as the disputed shop was initially tenanted by their father Attaullah Jan and after his death, the business therein was being carried on under a partnership between the widow of Attaullah Jan on behalf of her son and the father of respondent No,

1. The suit shop was later on leased out to respondent No,1 by virtue of lease deed dated 16-12-1992 for a period of two years commencing from 173-1992 at the rate of Rs,1,200 per annum. This allotment was made in pursuance of the findings of the inquiry report dated 4-9-1990 submitted by the Manager, Auqaf Department and conducted upon the directions of the Administrator to look into "the allegations about subletting of the suit shop". The lease was, however, cancelled by respondent No,2 on the application of the petitioners to whom the shop had been restored by the same order. As stated earlier, the appeal preferred there against to the Chief Administrator Auqaf under section 10 of the Ordinance was dismissed on 14-4-1993 and both the Courts declined to exercise the jurisdiction in view of the bar under section 21 of the Ordinance which is as under:-- "21 Bar of jurisdiction.-Save expressly provided in this Ordinance, no Civil or Revenue Court or any other authority, shall have jurisdiction--

(a) to question the legality of anything done under this Ordinance by or at the instance of the Chief Administrator; or

(b) in respect of any matter which the Chief Administrator is empowered by or under this Ordinance to determine or settle; or

(c) to grant an injunction or other order in relation to any proceeding before the Chief Administrator under this Ordinance or anything done or intended to be done by or at the instance of the Chief Administrator under this Ordinance."

3. After hearing the learned counsel for the parties, the learned Judge in Chambers of the High Court observed that the learned trial Judge had passed the impugned order on an application submitted by the Auqaf Department praying for the dismissal of the suit on the ground of ouster of jurisdiction within the contemplation of section 21 (ibid); that the case of the petitioners before the trial Court was that there was no allegation of violation of any conditions of the lease deed within the purview of section 9 of the Ordinance which warranted inquiry into the violation or otherwise of the terms of the lease deed and, therefore, the Civil Court would not be debarred from adjudicating upon the facts so as to see whether the power conferred by the Ordinance could be exercised in the circumstances of the case; that it was thus necessary for the defendants to have filed their written statements to enable the trial Court to determine as to under which provision of the Ordinance the impugned order was passed and whether such an order could be competently be passed under the Ordinance. It was thus concluded by the learned Judge in the High Court that in the present case the question of existence or otherwise of jurisdiction in the matter was dependent upon "the resolution of controversial facts" which could not be determined on the basis of averments in the plaint but would require the tiling of the written statements as well as recording of evidence of the parties.

Resultantly, the revision petition was accepted and, as stated earlier, the impugned judgments and the decrees of the two Courts below were set aside and the case was remanded to the trial Judge for enabling the defendants to tile their written statements and after recording the evidence to determine the ouster of jurisdiction under section 21 (ibid).

4. Mr. Muhammad Aman Khan, learned counsel appearing for the petitioners, contended that the question of jurisdiction was purely of law which could be determined without any written statement and without recording of evidence before the trial Court and that, therefore, the learned Single Judge in the High Court had erred to hold that the question of jurisdiction was dependent upon the resolution of controversial facts which could not be determined on the basis of averments in the plaint alone. The learned counsel further urged that the learned Judge in the High Court had already assumed that the cancellation of lease was only permissible under the provision of section 9 of the Ordinance, in that, section 21 of the Ordinance clearly bars the jurisdiction of Civil or Revenue Court or any other authority to go into the question of legality of any act done under the Ordinance. According to the learned counsel, the property in dispute being admittedly owned by respondent No,2, therefore, the legality and propriety of the impugned order of cancellation of the lease of the shop in dispute could not be determined by any forum including the Civil Court. To this argument, "this Court's judgment in Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 is a complete answer which has been consistently followed by this Court including the case of Hamid Hussain v. Government of West Pakistan and others (1974 SCM R 356). It is a well-established principle that even where the jurisdiction of Civil Courts is barred and conferred upon Special Tribunals, Civil Courts being Courts of ultimate jurisdiction would be competent to examine the acts of such forums to see whether their acts are in accordance with law or/are illegal or even mala fide. The learned Judge in the Chambers of the High Court was, therefore, legally correct to hold that for the determination of allegations as to whether the impugned orders are in accordance with law or/are even mala fide, the filing of the written statements and recording of evidence was a sine qua none. The impugned order of remand for the purpose was thus perfectly valid and warrants no interference by us in our Constitutional jurisdiction.

5. For the foregoing reasons, there is no merit in this petition for leave to appeal which is hereby dismissed.