1979CLC261 (PLP)

etc. C. R. No. 655 of 1976 titled ... Nazir Ahmad v. Muhammad Abdullah etc. both directed against the judgments and decrees dated 22-5-1976 passed by the learned District Judge, Dera Ghazi Khan accepting the appeals of the respondents against the judgments of the Civil Judge Third Class, Dera Ghazi Khan, dated 27-3-1976, and directing the return of the plaints to the petitioners for presentation to the Court of competent jurisdiction ; and C. R. No. 695 of Haji v. Allah Wasaya etc." directed against the judgment dated 22-5-1976 delivered by the learned District Judge, Dera Ghazi Khan, dismissing the appeal of the petitioner against the judgment dated 7-4-1976 of the Senior Civil Judge, Dera Ghazi Khan, whereby he dismissed the suit of the petitioner, and directing return of the plaint to him for presentation to the Court of competent jurisdiction. All the above nine revision petitions are being disposed of by one single judgment since a common question of law based on similar facts is involved in all of them.

2. Briefly stated, the facts of the case are that the petitioner(s) filed suit(s) for pre-empting various sales of agricultural land made in favour of the respondent (s) in each of the cases basing their superior right of pre-emption on their being tenants on the land in dispute. According to the plaints, the superior right of pre-emption had been conferred upon them by virtue of para. 25(3)(d) of Martial Law Regulation No.

115. In each of these cases, a preliminary objection was raised on behalf of the respondents-vendees teat the civil Courts did not have the jurisdiction to entertain and try suits for pre-emption instituted on the basis of superior right of pre-emption as tenants on the land in dispute. The learned Senior Civil Judge, Dera Ghazi Khan decided the suits out of which the first mentioned six civil revisions have arisen, by high detailed judgment dated 30-4-1975, delivered in another case titled Rahim Bakhsh v. Allah Wasaya etc. The learned trial Judge came to the conclusion that the jurisdiction of the civil Court is barred under the provisions of Martial Law Regulation No. 115 as also under section 77 of the Punjab Tenancy Act, 1887, and directed the return of the plaints in all the thirteen suits decided by him, vide his aforementioned judgment.

3. The petitioners-plaintiffs felt aggrieved and preferred appeals to the learned District Judge, Dera Ghazi Khan, who concurred in the findings of the learned trial Judge and maintaining his order directed the return of the plaints to the petitioners, by his judgment dated 28-2-1976. Hence the present revision petitions by the petitioners-plaintiffs.

4. In the suits out of which Civil Revisions Nos. 654 and 655 of 1976 have arisen, the learned Civil Judge Third Class, Dera Ghazi Khan, held that the civil Court had jurisdiction to entertain and try suits of pre emption based on superior right claimed as tenants and accordingly decreed the suits of the petitioners by his judgment dated 27-3-1976.

5. Aggrieved by this judgment and decree, the respondents preferred appeals to the learned District Judge, Dera Ghazi Khan, who accepted the same and by his judgment dated 22-5-1976 directed the return of the plaints to the petitioners for presentation to the Court of competent jurisdiction. Hence these two revisions by the petitioners-plaintiffs.

6. In the suit of which Civil Revision No. 695 of 1976 has arisen, the learned Senior Civil Judge, Dera Ghazi Khan held that the civil Court did not have the jurisdiction to entertain and try a suit of pre-emption of the nature stated above and accordingly dismissed the suit of the petitioner for want of jurisdiction, by his judgment dated 7-4-1976.

7. Feeling aggrieved, the petitioner preferred an appeal to the learned District Judge, Dera Ghazi Khan who decided the matter along with another set of such cases and dismissed the appeal by his judgment dated 22-5-1976 but directed the plaint to be returned to the petitioner for presentation to the Court of competent jurisdiction.

8. The learned counsel for the petitioner (s) in the first six civil revisions contended that at the relevant time when the suits were instituted no forum had been set up for instituting suits for pre-empting sales of land; where the superior right of pre-emption was claimed under para. 25(3)(d) of Martial Law Regulation No. 115, as such the civil Courts had the jurisdiction to entertain and try the suits and therefore the order directing the return of the plaint(s) passed by the learned trial Judge and affirmed by the learned District Judge was erroneous. In support of his above contention the learned counsel referred to an order dated 10-4-1976 passed by the Chief Land Commissioner, Punjab, certified copy of which has been placed on the record of this revision. This order was passed on an application filed by the petitioner before the Chief Land Commissioner. The learned counsel contended that the Chief Land Commissioner had himself directed that the petitioner(s) may have resort to the High Court against the judgment of District Judge for having the legal issue resolved.

9. The only other contention raised on behalf of petitioner (s) was that the petitioner (s) had been prosecuting their cause bona fide and diligently before the Courts of general jurisdiction and if the plaints are now returned these may be treated as barred by limitation and therefore if this Court comes to the conclusion ultimately that the revisions should fail and that the civil Courts did not have the jurisdiction, a direction should be given to the forum now set up to treat the suits as within limitation.

10. Mr. Mahfuzul Haq Khan, Advocate appearing on behalf of petitioners in C. R. Nos. 6`4 and 655 of 1976 and Mr. Islam Ali, Advocate, appearing for the petitioner in C. R. No. 695 of 1976 only adopted the submissions made by the learned counsel for the petitioners in the first six revision petitions.

11. Sardar Najamuddin Advocate appearing for respondents in C. R. No. 396 of 1976, on the other hand, contended :- Firstly, that bar of jurisdiction is specifically provided by para. 26 of Martial Law Regulation No. 115 and powers in relation to all matters falling within the purview of the said Martial Law Regulation were vested in the Land Commission and consequently the civil Courts did not have the jurisdiction ; Secondly, that section 9 of the Code of Civil Procedure itself lays down that the civil Courts shall have jurisdiction in relation to matters brought before it unless the jurisdiction is expressly or impliedly barred. In the present case, he submitted there was express bar and in any case bar of jurisdiction was implied when various provisions of Martial Law Regulation No. 115 are read conjunctively. He in this regard drew attention to paras. 3, 4 and 6 of Martial Law Regulation No. 115 ; Thirdly, that the Chief Land Commissioner, by his order dated 10-4-1976, did not say that the matter fell within the jurisdiction of civil Courts but only observed that it is open to the petitioners to have the legal issue resolved from the High Court. Fourthly, that the petitioners have admitted in their revision petitions mostly that civil Courts did not have the jurisdiction ; Fifthly, that Ordinance XX of 1976 was promulgated on 19-5-1976 (the provisions of this Ordinance were continued by Act XLVIII of 1976) and as such the only course for the petitioners was to have withdrawn the revision petitions and presented their suits to the forum set up under the aforesaid enactment even if it be assumed that they were bona fide agitating the matter in the civil Courts for want of any other forum ; Sixthly, that even now, the petitioners can have recourse to the forum set up under Martial Law Regulation No. 115 as provided by addition of sub-para. (5) thereto as there is no limitation provided for suits of pre-emption which can be instituted on the basis of right of pre-emption conferred under Martial Law Regulation No. 115; and Lastly, by placing reliance on Province of East Pakistan v. Muhammad Hussain Mia P L D 1965 S C 1 and Mrs. Keays Byrne v. M. Obaidullah Khan P L D 1961 Lah. 256 the learned counsel contended that this Court should take notice of the provisions of Ordinance XX of 1976 which created a special forum for suits of pre-emption based on superior right of pre-emption as tenants of the land in dispute."

12. Mr. S. M. Zamir Zaidi, Advocate appearing for respondents Nos. 1 to 3 in Civil Revisions Nos. 054 and 655 of 1976 supported the contentions raised by the learned counsel for the respondent in C. R. No. 396 of 1976, and further added that the trial Court in these cases decided the matters on 27-3-1976, whilst the learned District Judge. Dera Ghazi Khan accepted the appeals on 22-5-1976 and directed return of the plaints when Ordi nance XX of 1976 setting up a specific forum for such suits had already been promulgated on 19-5-1976. In this view of the matter he submitted that the clinging on of the petitioners to these revision petitions instead of having obtained their plaints for presentment before the appropriate forum is a highly negligent act. These revision petitions, he submitted, are, in any case, liable to dismissal.

13. The crux of the matter is whether at the relevant time the suits were properly instituted in the civil Courts. The right of pre-emption to enforce which the suits were filed was created by the provisions of special Statute viz. para. 25(3)(d) of Martial Law Regulation No.

115. The said statute established no Special Tribunal for the enforcement of the right. The right being obviously of a civil nature, in the absence of any special forum to enforce the same, provisions of section 9, C. P. C. we clearly attracted. It follows, therefore, that the suits were maintainable in civil Court.

14. The aforementioned conclusion is re-informed by the consideration that prior to the introduction of the said provision viz. para. 25(3Kd) ibid, the right of pre-emption was already statutorily recognised by Punjab Pre-emption Act of 1913 and the use of the word "first" in the said para would make the provision as relatable to the pre-existing rights as recognised by the Pre-emption Act. In this context of the matter the said special provision in my view will be treated as an amendment of Punjab Pre-emption Act making an addition thereto. On this premise the right would be enforcible within the framework of Punjab Pre-emption Act as other pre-existing rights conferred by the provisions of the same. This approach will necessarily lead to the inference that the additional right thus conferred by the special Statute by way of implied amendment of Punjab Pre-emption Act could be enforced in the like manner through institution of a suit in a civil Court.

15. Additionally it may be observed that when a statute creates a right, it is implied that special, forum will be made available to enforce that right. Even if therefore, it were to be assumed that there was duty to appoint any Tribunal to enforce the said right, since this duty was not carried out, the civil Courts did have the jurisdiction to enforce the right under the general law of the land.

16. By addition of sub-pare. (5) in para. 25 of M. L. R. 115 by virtue of Ordinance XX of 1976, it appears that the Legislature had the intention of providing special tribunal for determining questions relating to the right created by para. 25(3)(d) ibid. The position, therefore, being that though the right was conferred by the Special Statute no Special tribunal was provided for enforcement thereof at the time the suit(s) were filed by the appellants e and as the right of the litigant has to be decided initially at the time of accrual of the cause of action, the jurisdiction of the civil Courts was not ousted. I am fortified in my above view by the case of Sat Narain Gurwala v. Hanuman Parahad and another (A I R 1946 Lah. 85). The observations of their Lordships at page 91 of this reported case are as under :- " .It must be assumed that as soon as the right was created, the civil Court became the proper tribunal to deal with any questions that may arise concerning that right, and that if a special tribunal was created to adjudicate upon those rights and that tribunal did function then in that event the jurisdiction of the civil Court would stand ousted. On the other hand, if that special tribunal never came into being or having come into being refused or neglected to function, in that event the jurisdiction of the civil Court cannot be said to be ousted."

17. The upshot of the discussion, therefore, is that whatever view may be taken, the suits were competently filed in the civil Court.

18. In the light of the view I have adopted as to the interpretation of para. 25 and as to the competency of the suits as originally instituted it is not necessary to deal with the contention to the effect that since during the pendency of revisions and after the orders of the Courts below, directing return of the plaint (s), the new law was introduced setting up a special forum, the suits should have been refiled before the Collector. The provision of sub-pare. (5) of para. 25 of Martial Law Regulation No. 115 D lays down that all suits pending in any Court immediately before the commencement of Ordinance XX of 1976 shall on such commencement stand transferred to the Collector concerned. The question of return of the plaint (s) and presentment before Collector, therefore, did not arise as the suits stood transferred by virtue of the provisions mentioned above.

19. The contention that jurisdiction of civil Court stood excluded in view of the bar contained in para. 26 of Martial Law Regulation No. 115 read with paras. 3 and 4 ibid and that the forum for enforcement of right conferred by para. 25(3)(d) could be the Commission itself does not seem to be well placed. The provisions regarding transfer of pending suits to the new forum by addition of sub-pare. (5) to para. 25 impliedly arms the interpretation that according to the legislature even, the suits were competently filed and were being treated as such by it.

20. The order dated 10-4-1976 of the Chief Land Commissioner dec lining jurisdiction to act as a Judicial Tribunal to enforce the right conferred by para. 25 ibid is also in accord with the above interpretation adopted by me.

21. The orders of the Courts below in the light of the above discussion holding that the civil Courts did not have the jurisdiction to entertain the suits when those were presented and originally instituted cannot thus be maintained. Accordingly the revision petition is accepted and the judgment and decree dated 28-2-1976 passed by the learned District Judge, Dera Ghazi Khan as also the judgment dated 30-4-1975 of the Senior Civil Judge, Dera Ghazi Khan are set aside. Resultantly, the suit shall be remitted to the trial Court where it shall be deemed to be pending as on the date Ordinance XX of 1976 was promulgated and will meet the same treatment as provided by sub-pare. (5) added to para. 25 of M. L. R. 115 by the Amending Ordinance XX of 1976. In the peculiar circumstances of the case the parties are left to bear their own costs. K. M. A. Case remanded.