P L D 1983 Peshawar 134 (PLP)

Muhammad Sharif and others v. Muhammad Afzal Sohail etc. P L D 1981 S C 246 rel. Haji Azlzur Rehman for Petitioner. S. Zaffar Abbas Zaidi for Respondents Nos. 2 to

4. Taj Ali Khan for Respondents Nos. 5 to

8. Date of hearing : 9th March, 1983. By this writ petition filed under Article 199 of the Constitution of Pakistan, 1973, the petitioner, Muhammad Jaffar has challenged the judgment dated 11‑3‑1980 of the learned District Judge, Bannu invested with the powers of Tribunal under the N.-W. F. P. Public Property (Removal of Encroachments) Act, 1977, whereby the suit of the petitioner against respondents Nos. 2 to 4 was dismissed as time‑barred.

2. The facts of the case, briefly stated, are that the petitioner Muhammad Jaffar is an owner of shop No. 155/1 situated inside Lakki Gate, Bannu City, which was formerly an evacuee property, owned by a non Muslim owner, namely, Dittan Ram son of Fateh Chand, resident of Bannu City and the said shop was later on permanently transferred to the petitioner. There was a projection of this shop abutting on the land of the Municipal Committee respondent No. 2, about which the Hindu owner, Dittan Ram, had instituted a suit in 1935, wherein he was allowed to use the said land and the Municipal Committee was restrained from interfering with this right. The respondent No. 2 again attempted to interfere with the right of projection attached to the shop by letting it to Lai Mir, predecesser‑in‑interest of res pondents Nos. 5 to 13, whereupon the petitioner was forced to bring a suit against respondents Nos. 2 to 13 in the Civil Court. However the learned Senior Civil Judge, Bannu returned the plaint to the petitioners on 11‑1‑1971 by holding that the shop being evacuee property the Civil Court had no jurisdiction. This order was upheld in appeal by the learned District Judge, Bannu vide his order dated 31‑3‑1973, whereupon the petitioner was forced to file a Revision Petition No. 154/73 in the Peshawar High Court. This revision petition was still pending when the N.‑W. F. P. Public Property (Removal of Encroachments) Act, 1977 (hereinafter to be called the 'Act) was enforced whereby cases of encroachments upon the public property or any right or claim over the same were to be tried by a Tribunal constituted under section 12 of the Act, and any proceedings regarding these matters pending in any Court were also abated under subsection (2) of section 11 thereof, and the aggrieved party was given a right to file a suit within thirty (30) days of the coming into existence of the Act, in such a matter, before the Tribunal constituted thereunder. The District Judge and the Additional District Judges were appointed Tribunals under the Act within their respective jurisdictions. However, the petitioner did not choose to go before the Tribunal and continued with the prosecution of his case in revision before the High Court. It was ultimately decided in the High Court on 22‑4‑1979 by holding that the revision petition had abated as a result of the provisions of the Act and that the petitioner should seek his remedy before the Tribunal constituted thereunder.

3. The petitioner then filed a suit before the learned District Judge Bannu, who was acting as Tribunal under the Act, but it was dismissed by him on 11‑3‑1980 by holding that the Act came into force on 23rd June, 1977 and the suit had to be filed within a month, but as the same had been filed on 12‑5‑1979, it was time‑barred. As there was no other forum open to the petitioner for the redress of his grievances, hence the present writ petition,

4. We have heard the learned counsel for both the parties at considerable length and we find that there is no merit in this writ petition for the following reasons :‑

5. It was known to the petitioner that his suit before the Tribunal was time‑‑barred but still he did not elect to file a petition for condonation of delay alongwith the suit. It was only after more than 3 (three) months of the filing of the said suit that he moved an application for condonation of delay under section 5 of the Limitation Act wherein he took up the plea that he had been contesting his claim in the Civil Courts upto the lever of the High Court and that the latter had decided that he could file a suit before the Tribunal in spite of the bar of limitation. By doing so, the peti tioner appears to be taking advantage of the contents of the last paragraph of the judgment dated 22‑4‑1979 of our learned brother Ali Hussain Qazilbash, J. wherein he was pleased to observe that the new enactment (meaning the Act), had changed the entire complexion of the case and the petitioner was left with no other remedy excepting a suit before the Tribunal under section 12 within thirty days of coming into force of Act V of 1977, and equity, however, under the circumstances, demanded that the suit if filed by the petitioner, be decided on merits notwithstanding the bar of limitation. It appears that the successors of the aforesaid Lal Mir did not reconcile themselves with these observations of our learned brother and they challenged them before the Supreme Court where this order was clarified to mean that the petitioner would be at liberty to move an application for condonation of delay which may be considered on its merits. Even if the petitioner wanted to take advantage of the aforesaid observations of our learned brother Ali Hussain Qazilbash J, be was still required to file an application alongwith the suit for condonation of delay, on the ground that he was prosecuting his case in a wrong forum with a bona fide belief. It cannot be understood that as to how after three months of the filing of the suit, it suddenly dawned upon him that he should move the said application before the Tribunal. But the miserable part is that this application is also misconcieved, it is moved under section 5 of the Limitation Act which pertains to extension of period of Limitation regarding any appeal or application and not to suits. Actually, the petitioner could, if he could make out a good case, was required to file the said application under section 14 of the Limitation Act. Because as alleged by him, he was prosecuting his case in good faith in a Court which from .the facts of jurisdiction or other cause of like nature, was unable to entertain it.

6. We are of the considered opinion that even the plea of prosecution of the case in good faith in a Court which had no jurisdiction was also not available to the petitioner, because wording of the proviso to subsection (2?' of section 11 of the Act is very clear. For the sake of better understanding, the said subsection (2) of section I1 of the Act is reproduced below :‑ "All suits, appeals and applications relating to encroachment or disputes referred to in subsection (1) and pending in any Court shall abate on the coming into force of this Act : Provided that a party to such suit, appeal or application may within thirty days of the coming into force of this Act, file a suit before a Tribunal in case of a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined." It shall be seen that by this provision, all the suits, appeals and applica tion relating to encroachment on public property or a dispute that any lease or licence in pespect of such property has not been determined pending in any Court had automatically abated. The word "appeal" in the aforesaid provision would naturally include the revision applications pending before the High Court as held in A 1 R 1938 All. 78 and A I R 1943 Mad.

634. It is thus clear that the petitioner was not prosecuting his case in good faith] in the High Court as it had automatically abated on the coming into force of the Act. He could not avail of the plea of condonation of delay. He C was prosecuting his case before a wrong forum with full knowledge that it had abated and the High Court had ceased to exercise jurisdiction in it. In this connection, his plea of good faith or diligent prosecution before a wrong forum, is neither acceptable nor believable. Reference, in this respect with impunity, may be made to the cases of Mushtay Ahmad v. WAPDA (1981 S C M R 1077) Evacuee Trust Property Board v. Mian Iqbal Mahmood and others (1982 S C M R 801) and Fazal Elahi and others v. Capital Development Authority and others (1982 S C M R 469(1)).

7. We are also conscious of the fact that special Tribunals have been created with the object of speedy dispensation of justice and their findings should not be interfered with by the High Court in writ petitions if the actions D of the Tribunals do not suffer from any patent illegality or utter lack of jurisdiction. Arriving at this conclusion, we are supported by Muhammad Sharif and others v. Muhammad Afzal Sohail and others (1981 S C M R 246).

8. For the aforesaid reasons this writ petition fails and the same is hereby dismissed with no order as to costs. M. Y. H. Petition dismissed.