2001CLC218 (PLP)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Revision‑‑‑Void order‑‑‑Remedy‑‑‑Civil Court passed decree in a matter where jurisdiction of Civil Court was barred‑‑‑Such decree was assailed in Constitutional petition‑‑‑Contention was that in such matter revision petition was to be filed‑‑‑Validity‑‑‑No impediment existed in the way of High Court treating the Constitutional, petition as a civil revision as the same would be a matter of technicality‑‑‑Availability of remedy of revision did not bar the jurisdiction of High Court but it only regulated the discretion vesting in it. Muhammad Arif Raja for Petitioners. Ch. Riasat Ali for Respondents. Date of hearing: 26th September, 2000. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the judgment and decree, dated 5‑11‑1977 affirming the decree of the trial Court, dated 13‑5‑1976.

2. By Notification bearing No. l(36)Auqaf/70, dated 28‑1‑1970 Chief Administrator of Auqaf in exercise of the powers conferred upon him by section 6 of West Pakistan Waqf Properties Ordinance, 1961 took over and assumed the administration, control, management and maintenance of Waqf Properties attached to Gadi Koh Kirana in the Revenue Estate of Mauza Sangora, Tehsil Shahpur, District Sargodha. The respondents filed a civil suit challenging the validity of the aforesaid notification and asserting that they were owners in possession of the land in dispute. The trial Court after recording the evidence of the parties decreed the suit on 13‑5‑1976 which was assailed through an appeal before the learned District Judge. That appeal was dismissed on 5‑11‑1977. The petitioner moved for review of the judgment but that application was rejected on 6‑7‑1978.

3. Learned counsel for the petitioner has argued that the suit filed by the respondents on the face of it was incompetent and the judgments and decrees of the Courts below were totally without jurisdiction. It has been elaborated that if a person feels aggrieved of the Notification issued under section b of the Waqf Properties Ordinance, 1961 his remedy is to file an application before the District Court under section 7 of the Ordinance and not by filing a civil suit. This contention of the learned counsel is unexceptionable. A perusal of sections 6 and 7 of Waqf Properties Ordinance, 1961 clearly shows that remedy against a notification having been issued under section 6 (ibid) lies in filing an application before the District Court and not by instituting a civil suit. Reference in this connection may be made to Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102, Syed Muhammad Ali Shah Bokhari v. The Chief Administrator of Auqaf Punjab, Lahore 1972 SCMR 297 and Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore 1976 SCMR 450.

4. Ch. Riasat Ali learned counsel appearing on behalf of the respondents has, however, argued that the title to the property stood decided by the Supreme Court of Pakistan in earlier round of litigation. It appears that the property attached to Gadi Koh Kirana was treated as an evacuee property. The petitioner in that case sought a declaration to the effect that the property attached to Gadi Koh Kirana was not an evacuee property and' he was Gadi Nashin and Manager of the property. This matter went to the Supreme Court of Pakistan which was pleased to hold that the property was Waqf and stood dedicated for a religious and charitable purposes. That litigation has, however, no relevance to the present dispute which had arisen much subsequently out of the notification issued by the Chief Administrator of Auqaf. Mr. Riasat Ali then argued that this petition is not competent inasmuch as the remedy of the petitioner was to challenge the decree of the Civil Court and the District Court by filing revision petition before this Court and not by invoking its Constitutional jurisdiction. Learned counsel also submitted that the appeal of the petitioner before the District Judge was incompetent as it was filed against a dead person and necessary parties had not been arrayed as parties.

5. None of the contentions raised by the learned counsel for the respondent can succeed in the facts and circumstances of the case. As already held notification issued by Chief Administrator of Auqaf taking over the e property could only be assailed by filing an application under section 7 of West Pakistan Waqf Properties Ordinance, 1961 and jurisdiction of the Civil Court was totally barred. The judgment and decree rendered in the suit was void ab initio and a nullity in the eyes of law. That being so, the question as to whether the appeal before the District Court was competent or not pales into insignificance. As regards the availability of other remedy of revision before this Court it is by now well‑settled that availability of such a remedy does not bar the jurisdiction of the Court but it only regulates the discretion vesting in the High Court. In the facts and circumstances of the present case it is obvious that the decrees under challenge are without jurisdiction and void and, therefore, it would be in the interest of justice to nullify the effect of those judgments. Furthermore, according to the learned counsel for the respondent himself a revision petition lay to this Court against the judgment and decree of the Additional District Judge. There appears to be no impediment in the way of treating this Constitutional petition as a civil revision which would be a matter of technicality. In view of the above, this petition is allowed, judgments and decrees, dated 13‑5‑1976 and 5‑11‑1977 passed by the Civil Judge and the District Judge respectively are declared to be without lawful authority and of no legal effect. No order as to costs. Q.M.H./M.A.K./A‑142/L Petition allowed.