P L D 1993 Quetta 45 (PLP)

Facts briefly stated are that on 30th November, 1989 petitioner riled civil suit for recovery of Rs.24,000 before Oazi Bhag. Respondent riled written statement on 14th February, 1990 repudiating claim in suit. Initially ex parte decree was passed by learned Qazi but Majlis-e-Shoora had set aside the same. Thereafter, towards 28th January, 1991 matter was referred to Punchayat/Hindu Tribunal in purported exercise of authority under section 11, Dastoorul Amal Diwani, Kalat. Later, on the basis of recommendations made by Panchayat/Hindu Tribunal suit was decreed by learned Qazi Bhag vide judgment dated 25-2-1991. Respondent preferred Appeal No.13 of 1991, before Majils-e-Shoora, Sibi Division, which was rejected by means of judgment dated 29-6-1991. On revision filed by petitioner, matter was remanded by the High Court, vide common judgment dated 26-12-1991 passed in Civil Revisions Nos.220, 221 and 222 of 1991. After remand notices sent to respondent were not served. On publication of notices one Santosh Kumar appeared on 16-8-1992 and sought time. However, subsequently no one pursued the proceedings. Eventually ex parte proceedings were -drawn against respondent on 23rd August, 1992. Record reflects that petitioner nominated two members of Panchayat namely Madan Lai and Balik Chand, whereas in the absence of respondent trial Court nominated other two members Heera Nand and Bhag Chand. Thus, matter was referred to aforesaid four members of Panchayat for determining the dispute. Panchayat/Tribunal also tried to effect service on respondent and ultimately after publication of notice ex parte proceedings were drawn against him. The members nominated by trial Court did not participate in the proceedings, however, two members nominated by petitioner without recording evidence unanimously recommended grant of decree in favour of petitioner. Learned Qazi vide order dated 28-10-1992, has referred the matter to High Court for final decision. On receipt of reference notices were issued to parties. Petitioner after service appeared through Mr. Haiman Dass, Advocate, whereas respondent once again despite service absented. Accordingly ex parte proceedings were ordered against him. Firstly when Mr. Haiman Dass learned counsel for petitioner was confronted with the factual and legal position whether recommendations could be made by the members of Panchayat/Tribunal awarding decree to petitioner without recording the evidence, he candidly conceding the position replied in negative. Even otherwise it is well-settled that adjudication of claim must be A based on proper and tangible material. Therefore, recommendations of Tribunal/Panchayat are ex facie defective and no final decree can be granted on the basis thereof. Learned counsel then referring to observations in case Bawa Isar Dass Chela of Kishindas v. Kishindas and another PLD 1983 Quetta 100, pointed out that case in hand pertained to recovery of money which does not entail consideration of custom or usage, therefore, requires determination by learned Qazi without any reference to Tribunal/Punchayat within the meaning of section 11 of Dastoorul Amal Diwani, Kalat. Learned counsel canvassed that this aspect was not agitated during disposal of earlier revision petition. Thorough reading of relevant provision reflects intention of legislature whereby civil disputes between members of Hindu community require settlement by adopting special procedure. Bare perusal would show that matters are distinctly divisible in two portions. Those cases which involve interpretation of usage or custom or relate to personal law must be decided by specified forum consisting of equal members of Panchayat/Jirga. Besides such other disputes amongst Hindu-community members, which involve complicated points regarding their affairs and learned Qazi feels the necessity, then such matter in exercise of his discretions can also be, referred to Panchayat/Jirga. But other matters: regulated by ordinary law of the land which equally applies to members of Hindu-community, would be dealt with and adjudicated upon by normal forums. This view rinds support from the observations of Division Bench in case Mirza Khan y. Ch. Mohan - Dass 1982 CLC 2258, relevant portion whereof is reproduced, below.--

118. The next question to be determined is as to what would be the forum in case one of the parties to the suit is non-Muslim. Section 11 of the Zabita Amal Diwani lays down that where the Hakim rinds that the matter is such that the decision of the case should be got through a Jirga and when the parties are Hindus, the Jirga or the Panchayat to which such matter is referred should consist of equal number of Hindus. In such a case the final order could be passed by the Wazir-e?Azam and now by the High Court. Section 11 is the only provision of Zabita Amal Diwani. which makes any reference to Hindus. A suit where parties are Hindus could be referred to a Jirga which consisted of equal number of Hindus as members. There is noother provision in the Zabita Amal Diwani where any distinction has been made in the procedure. or the jurisdiction of the Court of Hakim or the Kazi in trial of suits of Hindus. Even if the parties are Hindus and in the opinion of the Hakim the matter is not such that should be decided by reference to a Jirga, the procedure prescribed for trial of suit by Kazi for Muslims would apply. A suit where parties are Hindus would also be tried under section 7 of the Zabita Amal Diwani and there is no separate procedure. prescribed. If a separate procedure for trial of suits when parties were Hindus was intended, such provision could be made in section 7 of the Zabita. and not under section 4 of the same. In the present case the Kazi had jurisdiction to try the suit under section 7 of the said Zabita and it was wrongly referred by the Hakim to the High Court under section 11 of the Zabita since there is no finding of the Hakim that the suit should be disposed of by reference to Jirga or Panchayat." ??????????? It may be seen that during previous round of litigation the only point considered was whether on receipt of recommendations from Panchayat/Jirga Qazi could himself pass final decree. There is no cavil to the conclusions arrived at by worthy Single Judge of this Court in holding that learned Gazi on receipt of recommendation from Panchayat/Jirga had no jurisdiction to pass final decree and reference in such eventuality must always be made to High Court. Now pertinent question requiring examination is whether present case could at all be referred to Tribunal/Panchayat. Evidently instant case relates to simple recovery of money arising from sale of goods. Certainly neither interpretation of any usage, custom or personal law nor any complicated affairs concerning Hindu community is involved in this matter. Accordingly I am persuaded to accept the contention raised by Mr. Haiman Dass and hold that the reference to Panchayat/Tribunal in this simple money, suit is not warranted. Since proceedings drawn by Punchayat are even otherwise defective, ID therefore, in addition to that considering- above discussion, matter is sent back/remanded to learned Oazi Bhag for expeditious disposal under the normal law. Reference is answered in the above terms. There shall be no order as to costs AA./432/Q Case remanded.