P L D 1970 Supreme Court 326 (PLP)

WAHIDUDDIN AHMAD, J.‑This is an appeal by special leave against the order of a learned Single Judge of the High Court of West Pakistan, Lahore, in Civil Revision No. 450 of 1963 dated the 7th May 1968, whereby he set aside the order dated the 2nd April 1963, of the learned Administrative Civil , Judge, Rawalpindi, and held that the suit pending before him was not triable by the civil Court. It has arisen in the following circumstances :‑ The property in dispute is a house No. H/i28, Murree Road, Rawalpindi. This house was obtained by Dr. S. Muhammad Asghar, respondent No. 1, since dead, on the basis of a deed of exchange in lieu of his property abandoned in India. Dr. Muhammad Asghar approached the Custodian of Evacuee Property in revision against the order dated the 9th February 1956, of the Deputy Custodian (G), refusing confirmation of agreement of exchange dated the 26th February 1950, of the above mentioned evacuee house in lieu of his property abandoned in India with Dr. Chanan Lal, its evacuee owner. The learned Custodian, in view of the Notification No. S. R. O.‑143 dated the 1st April 1959, published in the Gazette of Pakistan (Extra ordinary) of the 1st of April 1959, issued by the Central Government under section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957 (Act XII of 1957), by his order dated the 17th of August 1959, accepted the revision petition, confirmed the agreement of exchange and set aside the order of the authority below. In this connection he observed as under:‑ "It is, no doubt, true that the agreement of exchange between the petitioner and Dr. Chanan Lal, respondent was entered into on the 16th February 1950, and the Assistant Custodian declared the petitioner's property to be evacuee property some nine months afterwards, but the notification issued by the Central Government, referred to above, does not say that such property in India should have been treated as evacuee property on the date of the agreement and as it is established that the petitioner's property which he gave in exchange to Dr. Chanan Lal respondent in lieu of the property had been treated as evacuee property on the 5th December 1950, he is in my opinion, entitled to get the agreement of exchange confirmed. I, therefore, accept this revision petition, set aside the order dated the 9th February 1956, passed by the D. C. (G), Lahore, and hereby confirm the agreement of exchange dated the 16th February 1950, entered into between him and Dr. Chanan Lal respondent," He further directed as under:- "The petitioner now would be at liberty to bring a suit in a civil Court for getting the agreement specifically performed under clause (a) of subsection (3) of section 16 of the Pakistan (Administration of Evacuee Property) Act, 1957 to enable him to become owner of the property in dispute." Dr. Muhammad Asghar, in pursuance of this order of the learned Custodian, filed suit for specific performance of contract against Dr. Chanan Lal in the civil Court at Rawalpindi on the 4th of September 1959, and obtained a decree for specific performance on the 31st March 1960. It, however, appears that in the meanwhile on the 25th of November 1959, the house in dispute was transferred to the appellants by the Assistant Settlement Commissioner, Rawalpindi, treating the property as a part of the compensation pool under the provisions of Displaced Persons (Compensation and Rehabilita tion) Act, 1958. The appellants on finding that the house was being claimed by the respondent on the strength of exchange confirmed by the Custodian and the civil Court decree for specific performance, filed a suit for declaration and cancellation of the civil Court decree dated the 31st March 1960. They alleged in the suit that the decree has been obtained by fraud and it does not affect the rights of the appellants. The suit was resisted by Dr. Muhammad Asghar on the ground that the civil Court has no jurisdiction to question the order of confirmation passed by the Custodian of the Evacuee Property on the 17th August 1959. In this connection, it may be mentioned that during the pendency of the suit the appellants approached the Custodian with a review petition praying that the above‑mentioned order of confirmation of the alleged agreement of exchange between Dr. Muhammad Asghar and Dr. Chanan Lal be reviewed. Sajjad Ahmad, J. the then Custodian refused to review the order saying that the grounds urged in the petition did not furnish a justification to review the order of his Darned predecessor. He further observed that as the matter is validly seized by the civil Court, the grounds urged by the appellants can be considered in the civil suit. It appears that on the basis of these remarks the civil Court held that the suit is purely of civil nature and triable by the civil Court, particularly, as the Custodian has also no objection to it. Thereupon, Dr. Muhammad Asghar invoked the revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure and challenged the finding of the civil Court. The High Court, by order dated the 7th May 1968, has upheld the contention of the respondents that the civil Court has got no jurisdiction in. the matter and the appellants have no locus standi to file the suit. The appellants have challenged this order in this appeal before us. Leave was granted in this case to consider the contention of the appellants that mere confirmation of the agreement did not confer title to Dr. Muhammad Asghar and as the property had been transferred to the appellant before the decree for specific performance was passed they had a better title. In support of the appeal Sardar Ata Ullah and Sh, Abdur Rashid learned counsel for the appellant have contented that the mere passing of the order of confirmation has conferred no title on Dr. Muhammad Asghar in respect of the property in dispute. According to them, the appellants who are claimant dis placed persons being in possession have vested right to the transfer of the property in dispute and, have locus standi to file the suit in the civil Court. After hearing the arguments of the parties, we are satisfied that there is no substance in this appeal. It will be noticed that Dr. Muhammad Asghar moved an application under section 20 of the Pakistan (Administration of Evacuee Property) Act for the confirmation of the agreement of exchange dated the 16th February 1950, entered into between him and Dr. Chanan Lal. This agreement was confirmed by the Custodian of Evacuee Property. The result was that under section 20(4), the Custodian confirmed the creation of interest in the property at Rawalpindi on the condition that Dr. Muhammad Asghar would be entitled to claim this property by filing a suit for specific performance of contract. The Custodian further gave his approval under section 16(3)(a) of the Pakistan (Administration of Evacuee Pro perty) Act (Act XII of 1957), which is to the following effect :‑ "Section 16(3). Nothing contained in the foregoing sub sections shall‑ (a) prevent a civil Court from ordering specific performance of any agreement to sell or exchange immovable evacuee property where such agreement has been approved by the Custodian, or a Registering officer from registering a deed of sale or exchange relating to such property where a certificate under section 20 has been granted by the Custodian." In my opinion, the granting of this certificate by the Custodian and confirming the exchange of agreement in favour of Dr. Muhammad Asghar, the property in dispute was taken out from the evacuee pool and became the subject‑matter of transfer in the ordinary way to Dr. Muhammad Asghar. Moreover, this order is immune from attack in the civil Court under section 41 of the Pakistan (Administration of Evacuee Property) Act, which reads as under :‑ "Section 41(1). Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction‑ (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property; (b) to question the legality of anything done under this Act by or at the instance of the Custodian, or (c) in respect of any matter which the Custodian is empowered by or under this Act to determine. (2) . . . . . . . . . . (3) . . . . . . . . . . (4) . . . . . . . . . . (5) . . . . . . . . . . It will thus be noticed that any matter which is to be determined by the Custodian is outside the purview of the civil Court. In this case, the Custodian has determined the validity of exchange between Dr. Muhammad Asghar and Dr. Chanan Lal and has further created an interest in the property in dispute in favour of Dr. Muhammad Asghar. Therefore, the validity of the exchange cannot be challenged in civil Court and it is immune from its jurisdiction. The contention of the learned counsel for the appellants that the exchange in question has been obtained by fraud and, therefore, they have a right to challenge it in a civil Court is also 0 devoid of force The matter, if at all, could be agitated before the Custodian of Evacuee Property but the civil Court has no jurisdiction in such matters. The mere fact that the Custodian made certain remarks in his order dismissing the review petition would not confer jurisdiction on the civil Court to entertain the suit filed by the appellants. Apart from this, the appellants have no locus standi to file the suit in the civil Court at Rawalpindi. In this connection, it will be noticed that Dr. Muhammad Asghar on the 3rd October 1959, addressed a letter to the Chief Settlement Commissioner informing him that the property in dispute is not part of the evacuee pool and, therefore, it should not be transferred to any body. In reply to this letter, the Deputy Settlement Commis sioner (F) Lahore, asked the counsel of Dr. Muhammad Asghar to supply an attested copy of the order dated the 17th August 1959. In pursuance of this letter an attested copy of the Custodian order was supplied to the Department. These facts were known to the appellants as they had inspected the file of the Settlement Department on the 22nd November 1960, and 24th November 1960. It is quite true that Appendix 10 was issued by the Assistant Settlement Commissioner. Rawalpindi, to the appellants on the 25th November 1959, but the same was cancelled on the 26th January 1960, which is apparent from the copy of the order dated the 20th January 1960, of the Deputy Settlement Commis sioner, Rawalpindi in respect of the property in dispute. Thus it is quite clear that the property in dispute at no time was validly transferred to the appellants and the Appendix also which way issued under the order of an incompetent authority was c cancelled by a competent authority on the 20th January 1960, 1n these circumstances, the appellants, have no interest in the property in dispute and have no locus standi to challenge the validity of exchange in respect of the property in dispute. We are, therefore, satisfied that the High Court was perfectly justified in hold that the civil Court has no jurisdiction in the matter. There is no force in the appeal which is dismissed with costs. S. Q. Appeal dismissed.