1988 PLP 1315 (CLC)

(3) Whether this Court has no jurisdiction? (4) Whether suit is insufficiently stamped? (5) What should the decree be? It is submitted by Mr. K.M. Nadim that in the trial Court when judgment was announced, it appeared in the judgment in paragraph 2 as observation of the Court that issues Nos. 3 and 4 were not pressed on behalf of defendant in the suit. Issue No.3 is with regard to jurisdiction and issue No.4 is with regard to stamping of the plaint whether that was done sufficiently or not as required under law. Perusal of the record of the trial Court does not show specifically that these two issues were not pressed on behalf of the defendant in the suit. It appears from the record that on 15‑12‑1979 issues were framed by the Court in presence of the parties and it is not mentioned in the case diary of that date that they were consent issues. It also does not appear from the case diary of 26‑5‑1980 which is the date on which arguments were heard that counsel for the defendant in the suit expressed his desire that he did not wish to press issues Nos. 3 and

4. However, in the judgment this fact i: disclosed. Both Mr. K.M. 1Jadim, Advocate for the applicant and Mr. Sabir Hussain, Advocate for respondent appearing before me in this revision have stated that they were not appearing in the trial Court as such no further light could be shed by them on this point as to what happened in the trial Court. In the trial Court the suit was decreed in favour of plaintiff as such defendant in the suit filed appeal which was heard and the appellate Court in respect of issues not pressed held as under:‑ "Issues Nos. 3 and 4 are legal issues but the trial Court replied them by stating that these issues are not pressed before it, when the respondent is admittedly a licensee then he does have any claim, right or interest to approach civil Courts and seek declaration to the effect that he is the legal lessee/tenant of about 2,000 sq. yds situated at Clifton Beach Karachi and to declare that letter, dated 23‑5‑1977 issued by the appellant is void, invalid and of no legal effect. The trial Court granted this declaration by ignoring that respondent was asked by the K.D.A. to vacate the premises as the licence was determined. The Civil Court in these circumstances was not justified to grant decree as has been done in the present case." Ultimately the appellate Court set aside the impugned judgment, dismissed the suit and in the result allowed the appeal. It is submitted by Mr. K.hf. Nadim that question of jurisdiction is not exclusively legal question but is mixed question of fact and law. In the plaint in paragraph 7(h) plea was taken that action of K . D. A . by issuing impugned notice was mala fide hence finding should have come from the trial Court on the question. Reliance is placed by the learned counsel on the case of Abdul Rauf and others v. Abdul Hamid Khan and others P L D 1965 SC

671. In that case it is held that mala fide order is a fraud on the statute and further mala fide order is one which is passed not for the purpose contemplated by the enactment but some other collateral or ulterior purposes. It is further submitted on behalf of the applicant that section 11 of Sind Public Property (Removal of Encroaohmgnt) Act, 1975 does not contemplate total ouster of jurisdiction of civil Courts but it depends upon the facts of that particular case. In support of the proposition reliance is placed on the cases of Weedhal Shah and others v. Province of Sind and another P L D 1978 Kar. 464 and Mst. Siddiqa Begum and others v. K.D.A. P L D 1985 Kar.

312. Mr. Kizilbash, Advocate for the respondent has conceded to the legal position as is enunciated in the rulings cited above and has stated that question of jurisdiction should have been decided by the trial Court in view of the pleadings of the parties particularly when there is no clear cut indication in the record that issues relating to jurisdiction were not pressed. He has further submitted that issues on which findings have not been given particularly with regard to jurisdiction is material issue which affects rights of both the parties. In these circumstances both the learned counsel have agreed that the case should be remanded to the trial Court for fresh decision on all the issues framed in that Court including 3, 4 and 2 additional issues which are as under:‑ "(6)Whether notice, dated 23‑5‑1977 impugned in the suit issued by K . D . A . was legal or not? (7) Whether notice impugned is mala fide or not?" In the result this revision application is allowed, impugned judgment of the appellate Court is set aside and the case is remanded to the trial Court with direction that it should be reheard and both parties should be allowed to produce any evidence if they so desire with regard to new issues framed and added and then the Court give A final decision within 3 months from today. It is stated by the learned counsel that on account of creation of new district now the competent Court would be Vth Senior Civil Judge South, Karachi. The case would be heard by that Court. H.B.T./M‑381/K Case remanded.