1989 PLP 1052 (SCMR)

Representation

• Bashir Ahmad Ansari, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellants.
• S.Riaz Ahmed Pirzada, Advocate Supreme Court and Manzoor Ilahi, Advocate‑on‑Record for Respondent.
• Date of hearing: 7th February, 1989.
• ‑‑‑S.92‑‑Constitution of Pakistan (1973), Art.185(3)_ ‑Waqf property, suit against‑ Leave to appeal was granted to consider whether m the facts and circumstances of the case S.92 of Civil Procedure Code was attracted and if so, whether the suit could proceed in the absence of the consent of Advocate‑General.
• --S.92-- Waqf property, suit against‑‑Pre‑conditions‑‑Suits concerning Waqf properties being covered by S.92, C.P.C., must be brought with the permission of Advocate‑General‑‑Where such permission had not been secured in compliance with S.92 of Civil Procedure Code, suit against Waqf property was ab initio not competent.
• ‑‑‑S.92‑‑Waqf property, suit against‑‑Locus stands‑‑Party having no legal right under the law and apparently a stranger would have no locus standi to file a suit against Waqf property unless he had sought Advocate‑General's permission in line with the provisions of S.92, Civil Procedure Code‑‑Absence of such permission would render the suit as incompetent and could be thrown out as such‑‑Appeal against dismissal of suit wherein statutory retirement remained unfulfilled, being incompetent was dismissed in circumstances.‑‑[Locus stands).
• The dispute between the parties in this appeal relates to Jamia Masjid, Lala Rukh Colony, P.O.F. Wah Cantt. The respondent called the P.O.F. Cooperative House Building Society, Wah Cantt., brought suit for declaration and permanent injunction against the appellants from acting as Khateeb of Mosque against appellant No.1 and Muntazim Markazi Jamia Masjid against appellant No.2. After framing issues and recording evidence of the parties thereupon, the learned trial Judge decreed the suit in favour of the respondent society, vide order, dated 17‑5‑1986 which order was impugned in appeal by the appellants in the District Court. The learned District Judge upheld the finding of the trial Court and dismissed the appeal vide order, dated 6‑1‑1988. Hence; the appellants filed in this Court petition for leave to appeal which was allowed to consider whether in the facts and circumstances of the case section 92 of the Civil Procedure Code is attracted and if so, whether the suit could proceed in the absence of the consent of the Advocate‑General of the Punjab.
• We have heard the learned counsel for the parties and gone through the evidence record. The fact is not disputed that the Mosque was constructed with the donation of the Public on Slate land. It is also conceded that the appellants were acting as `Khateeb' and `Muntazim' of the Mosque, when the present proceedings were instituted. We pause here to observe that suits concerning `Waqf properties are covered by section 92 of the Civil Procedure Code which lays down that such suits must be brought in Court with the permission of the Advocate‑General. This being the position, it is obvious that as 11 the consent of the Advocate‑General has not been secured in compliance with the provisions of section 92 of the C.P.C., the suit was ab initio not competent. Had the Court of first instance attended to this legal requirement, it would have taken judicial notice of the matter and either would have returned the plaint to the plaintiff or would have dismissed the suit as not competent. In the present proceedings the respondent society was a stranger and had no locus standi to seek declaration against the appellants. The learned Single Judge in the High Court was wrong to observe in a case of this nature that section 92 of the Civil Procedure Code could not be agitated in the revisional jurisdiction because it was neither taken in the written statement before the Civil Judge nor at the appellate stage. The legal position is settled that there is no estoppel against the statute. If it is found by the Court that a party which has no legal right under the law and is openly a stranger and comes to Court to secure relief in a matter, he cannot be allowed to lay any claim to the same without the requisite course. We have already observed that in the present proceedings the respondent society was stranger and would have no locus stands to file the present suit unless it moved the Advocate‑General and sought his permission m line with the provisions of section 92 of the Civil Procedure Code. Thus the suit was entirely incompetent and should have been thrown out as such. In Civil Appeal No.K‑57/1975, Fakir Sheikh and others v. Mehtab Shah Pir Bukhari Masjid Committee and others, decided by this Court on 9th January, 1989, a somewhat similar question was raised before this Court and inter alia it was held that unless according to section 92 of the C.P.C. the permission of the Advocate‑General has been sought, the claim of a party in a suit will have no legal worth and value and there will be no occasion for the Court to take cognizance of the claim of the party.

Headnotes / Summary

Judgment & Decree