Mst. ASGHARI KHANUM vs PROVINCE OF PUNJAB through Director, Education
This matter originated from a petition for leave to appeal against a Lahore High Court judgment concerning a long-standing property dispute over land allotted to the petitioner in 1975. The petitioner's allotment was initially challenged by the Province of Punjab through the Education Department, leading to protracted litigation involving multiple rounds of writ petitions, civil suits, and applications under Section 12(2) of the Code of Civil Procedure 1908. The High Court had previously dismissed the petitioner's writ petition, holding that an order passed by an Additional District Judge in revisional jurisdiction was not amenable to constitutional jurisdiction. The petitioner contended that the suit was not maintainable following its withdrawal and that the original allotment order had attained finality after previous Supreme Court proceedings. The Supreme Court granted leave to appeal to examine the fundamental question of whether the Civil Court possessed the jurisdiction to adjudicate the matter and whether the civil suit could legally proceed given the history of the litigation. The Court directed that status quo be maintained pending the final disposal of the appeal.
- Does a Civil Court have jurisdiction to adjudicate a matter where the underlying allotment order has already attained finality through Supreme Court proceedings?
- Is an application under Section 12(2) of the Code of Civil Procedure 1908 maintainable after the withdrawal of the original suit?
- Can an order passed by an Additional District Judge in revisional jurisdiction be challenged through the constitutional jurisdiction of the High Court?
- Article 185(3), Constitution of Islamic Republic of Pakistan 1973
- Order VII Rule 11, Code of Civil Procedure 1908
- Section 12(2), Code of Civil Procedure 1908
ORDER
' MUHAMMAD NAWAZ ABBASI, J.---The petitioner through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has sought leave to appeal against the judgment dated 20-11-2001 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi, arising out of a civil suit.
2. The petitioner was allotted land measuring one Kanal, by the Deputy Settlement Commissioner vide order dated 6-1-1975. The Province of Punjab through Director Education (S), Rawalpindi filed a revision petition against the said order before the Settlement Commissioner, Rawalpindi which succeeded and the order passed by the Deputy Settlement Commissioner was set aside. The petitioner challenged the order of Settlement Commissioner in the Lahore High Court, Rawalpindi Bench through Writ Petition No,721-R of 1975 which was allowed vide judgment dated 25-4-1982 and the order of Settlement Commissioner was declared without lawful authority. The Province of Punjab through the concerned department filed a Civil Petition bearing No,161 of 1982 before this Court which failed and was dismissed vide order 20-12-1983. The respondent-Department thereafter filed a suit for declaration and permanent injunction on 18-7-1984 and the petitioner by way of filing an application under Order VII, rule 11, C.P.C. Sought rejection of plaint and on failure, he preferred a civil revision which was allowed by a learned Additional District Judge, Rawalpindi and the plaint in the suit was rejected. The Department being aggrieved of the order dated 17-9-1985 of rejection of the plaint at the first instance filed an appeal in the High Court but later by withdrawing the same, filed a Constitution Petition bearing No,207 of 1985 which was allowed by the High Court vide judgment dated 14-10-1987 and while declaring the order of rejection of plaint as without lawful authority, set aside the same and remanded the case to the Civil Court for disposal of suit on merits. Subsequently, the suit was withdrawn by the Department and the petitioner when sought implementation of the transfer order, the Department filed an application under section 12(2), C.P.C. For setting aside the order of withdrawal of suit. This application was dismissed by the trial Court being not maintainable and appeal preferred against the order of dismissal of said application was dismissed by a learned Additional District Judge being not competent. The Department then filed a revision petition which was accepted by the learned Additional District Judge and case was remanded to the trial Court for decision of the application under section 12(2), C.P.C. On, merits. The petitioner challenged the order passed by the Additional District Judge in the revision petition by way of filing the Writ Petition bearing No,372 of 1993 in the High Court and a learned Single Judge while placing reliance on Ghulam Hussain v. Malik Shahbaz Khan 1985 SCM R 1925; Muhammad Bakhsh v. Ghulam Hussain 1989 SCM R 443; Muhammad Zahoor v. Lai Muhammad 1988 SCM R 322 and Muhammad Khan v. Mst. Ghulam Fatima 1991 SCM R 970 dismissed the writ petition with the observation that order of Additional District Judge passed in revisional jurisdiction was not challengeable in Constitutional jurisdiction of the High Court.
3. Learned counsel for the petitioner has contended that after withdrawal of the suit, application under section 12(2), C.P.C. Was not maintainable and further after dismissal of appeal by the Additional District Judge, the revision before the same Court was not maintainable. Learned counsel also argued that the order dated 6-1-1975 passed by the Deputy Settlement Commissioner by virtue of which the land was transferred to the petitioner, attained finality on disposal of the matter by this Court in a civil petition for leave to appeal, which could not be assailed in the civil suit.
4. The question whether in the given situation, the Civil Court had the jurisdiction to adjudicate the matter and civil suit would legally proceed needs examination. We, therefore, grant leave to appeal to consider, inter alia, the question of jurisdiction, of Civil Court. We direct that pending disposal of the appeal, the status quo shall be maintained by the parties.