1986 PLP 2561 (CLC)

Mohsin Tayebally for Appellants. M.G. Dastgir for Respondents. Date of hearing: 27th "March, 1986. I propose to dispose of the above‑noted two First Civil Appeals No. 38 and No. 39 of 1971 by this judgment, as both these appeals arise out of the same judgment. By the impugned judgment, the plaints in the two suits, bearing No. F.C. 21 of 1963 and No. 5' of 1968, were rejected by the trial Court on the ground that the jurisdiction of the civil Court is barred under Martial Law Regulations No. 88 and No.

93. On 6th July, 1963, the appellant instituted Suit No. 21 of 1963 against 35 persons for declaration, injunction, possession and mesne profits in respect of agricultural land, measuring 446 acres in Deh Lundo and Deh Kundi. Again, on 2‑11‑1968, the appellant instituted another suit, bearing No. 57 of 1968, against nine persons for declaration and injunction in respect of the same land. Both the above suits were consolidated, as they related to the same land. After consolidation of the suits, they proceeded in the normal course, and following issues were framed by the Court on 31‑3‑1965:‑ "(1) Is the suit time‑barred? (2) Did late Qamardin accept defendants as co‑owners with him in the suit land as alleged? If so, what is its effect? (3) Are the defendants in adverse possession of land for more than 12 years. (4) Are the plaintiffs and heirs of Qamardin not the owners the suit land? (5) Was Qamardin not in exclusive possession of land? (6) Has there been partition of share as alleged in written statement and if so what is its effect? (7) Is the agreement, dated 17‑5‑1947 executed by Umerdin binding on him and the plaintiffs. If not, what is the effect? (8) What should the decree be?" The plaintiffs examined three witnesses, namely, Haji son of Khuda Bux, Muhammad Siddiq son of Mouladad, and Ghous Bux son of Muhammad Murad in support of their case. After examination of the aforesaid witnesses of the plaintiffs on 20th of January, 1971, the defendants in the suit filed an application under section 151, C.P. C. read with Martial Law Regulations 88 and 93 of 1961, praying for dismissal of the suit. The learned trial Court after hearing the parties, came to the conclusion that the jurisdiction of Court in the cases was barred, in view of the Martial Law Regulation No. 88 read with Martial Law Regulation No. 93, and accordingly the plaints in both the suits were rejected. The order, rejecting the plaints in the above suits, is under challenge in the above appeals. The learned counsel for the appellant contends that, there being no issue in the case with regard to the jurisdiction of the Court, the learned trial Court could not reject the plaint without framing such an issue in the case, and allowing an opportunity to appellant /plaintiff to lead evidence thereon. Alternatively, it is contended that the action, impugned in the two suits, was not authorised by any of the Martial Law Regulations in force during the relevant period and, as such, no immunity could be extended to such an action under Regulations Nos. 88 and 93, after the enforcement of Constitution of 1962. The learned counsel for the respondent, on the other hand, supported the order of trial Court, and urged that, as there was blanket validation of all actions of Martial Law Authorities under Martial Law Regulation 88, as modified by Martial Law Regulation 93, the trial Court rightly rejected the plaints in the two suits. After hearing the learned counsel for the parties at length, I am of the view that the rejection of the plaints in the suit by the trial Court was wholly unjustified. No doubt, in the suits instituted by the plaintiffs, one of the allegations was that the Martial Law Authorities had called the plaintiffs in the year 1959, and made them sign a statement, dated 12‑2‑1959, on the basis of which the land was transfered to respondent, and this action was described in the plaints as mala fide and without lawful authority, but no relief was claimed in the suit to declare the order of Martial Law Authorities as without lawful authority. The plaintiffs only claimed declaration of their title to the suit land in Suit No. F.C. 57 of 1968. In addition to it, the suit was not confined only to the relief of declaration, but it also included the reliefs for possession and mesne profits. It is significane that issue with regard to the jurisdiction of Court was framed by the Court, and it was only after the plaintiffs had examined three witnesses that the application for rejection of the plaint was moved by the respondent. In these circumstances the only appropriate course for the Court below was to frame an issue with regard to the jurisdiction of the Court on the basis of the averments made in the application for rejection of the plaint, and, after allowing the parties to lead evidence on that issue, should have considered the question of jurisdiction of the Court. The learned counsel for the respondent has cited the cases of Jalaldin and others v. Muhammad Akram Khan P L D 1963 Lah. 596, Aziz‑ur‑Rehman Chowdhuri v. M. Nasiruddin and. others P L D 1965 SC 236, and Muhammad Khan v. The Border Allotment Committee P L D 1965 SC 623 to contend that the jurisdiction of the Civil Courts was completely barred to examine the legality and validity of any action taken by the Martial Law Authorities, in view of Martial Law Regulations 88 and

93. The scope of protection to the actions of the Martial Law Authorities was examined by me recently in Revision Application No. 198 of 1976 Haji Sulleman v. The Sind Land Commissioner decided on 2‑3‑1986, and, after examining the case‑law available on the point, I reached the conclusion that only such actions of the Martial Law Authorities were protected after the enforcement of the Constitution of 1962, which are shown to have been either specifically protected under the Constitution, or which were passed under any of the existing Martial Law Regulations, or Martial Law orders. In order to determine 1' whether the action impugned in the suit was protected under any Martial Law Regulations, or Order, it was necessary for the trial Court to have recorded the evidence of the parties first before deciding this issue in the circumstances of the case. I accordingly accept this appeal', set aside the order of the trial Court, and remand the case back for retrial. The trial Court will be at liberty to frame an additional issue, in addition to the issues framed in the suit, with regard to the jurisdiction of the Court on the basis of the allegations made in the application. dated 20th June, 1970, and then decide the same, alongwith the other issues in the suit in the light of the evidence, which may be produced by the parties. There will be no order as to costs in the circumstances) of the case. A . A . Appeal accepted.