1990 PLP 545 (SCMR)

2. The brief facts giving rise to the petition are that the respondent filed a suit for permanent injunction against the petitioner restraining him from running 'the brick‑kiln and digging clay from the land of which the petitioner was a lessee from previous owner of the land purchased by the respondent.

3. One of the pleas taken in defence was that the Civil Court had no jurisdiction to entertain the suit in view of Martial Law Regulation No.

115. Accordingly, one of the issues framed, namely issue No.3, was "Whether this Court (Civil Court) has got jurisdiction to entertain the suit?" This issue of jurisdiction was decided against the petitioner so also the case on merits. The petitioner filed an appeal whereupon a contrary finding on the issue of jurisdiction was also given. Consequently the appeal was allowed and the suit was dismissed. However, in revision, the findings on the issue of jurisdiction as also on merits were reversed by the High Court and the decree passed by the Civil Judge was restored.

4. It may be pertinent to` mention that during the pendency of the suit, the Balochistan Tenancy Ordinance, 1978 (hereinafter called the Ordinance) was promulgated on 27‑12‑1978. The relevant provisions, which barred the jurisdiction of the Civil Court, were considered neither by the trial Court nor the first appellate Court, but the same were, however, considered by the High Court. It is contended by Mr. Muhammad Ali Sayeed, learned counsel for the petitioner, that the suit, admittedly being between landlord and tenant arose out of a lease or condition on which the tenancy was held, was covered by section 64 of the Ordinance, which provided that such matters shall be instituted, heard and determined by Revenue Courts and no other Court shall take cognizance of any such dispute or matter, with respect to which any suit might be instituted. In reply, however, it was submitted by Mr. lftikhar Mohammad, learned counsel for the caveator‑respondent that these provisions could apply to proceedings instituted in future and not to the pending ones. It may therefore, be useful if subsection (3) of section 64 of the Ordinance is reproduced hereinbelow. It reads. "The following suits shall be instituted in and heard and determined by Revenue Courts, and .no other Court shall take cognizance of any such dispute or matter with respect to which any suit might by instituted: Provided that:‑‑ (i) Where in a suit cognizable by and instituted in a civil Court it becomes necessary to decide any matter which can under this subsection be heard and determined only by a Revenue Court. Civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII, Rule 10, Civil Procedure Code, and return the plaint for presentation to the Collector, (ii) . . . . . . . . Reading the provision of first proviso quoted above, it appears that prima facie it will also cover the pending proceedings.

5. We, therefore, grant leave to consider, inter alia, the question of jurisdiction of the Civil Court, raised in this petition. The petitioner shall furnish security in the sum of Rs.2,

500. The appeal shall be prepared on the present record with liberty to the Advocates to place on record any other relevant documents.

6. The interim stay granted earlier shall continue till the disposal of the appeal. M.A.K./K‑118/S Leave granted.