P (PLP)

4. The learned Senior Sub‑Judge passed the following order on this petition which is reproduced below :‑

" It is clear that the plaintiffs (joint Hindu family) are permanent residents of Pakistan and the whole family has been here throughout since partition. They have not acquired any property in Bharat. The word used in subsection (2) of section 34 of Regulation 1 of 1950 are " whenever any question such as referred to in clause (a) of subsection (1) arises in any Civil or Revenue Court". No such question has arisen before me in the course of proceedings. It was raised by the defendant's counsel to‑day. Before I refer the question to Custodian for decision I must be satisfied that the plaintiffs are evacuees within the meaning of section 2 (2) of the Regulation. In view of the affidavit before me and the circumstances of the case I am satisfied that the plaintiffs cannot be treated as evacuees in any way. This being the case the provisions of sections 12 and 34 of the Regulation are not attracted. The application is accordingly rejected ".

5. The objection before me is that the lower Court had no jurisdiction to determine the status of the plaintiff in view of the provisions of section 34 of Regulation 1 of 1950, a relevant portion of which is reproduced below for facility of reference:‑-- " Save as expressly provided in this Regulation no Civil or Revenue Court shall have jurisdiction to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceeding as to whether any property is or is not evacuee property, or whether an evacuee 'has not any right or interest in any such property : ?????

6. In dealing first with the revisional powers of a High Court under section 115 Civil Procedure‑Code, these powers are confined to the 3 clauses mentioned in section

115. As a general principle my learned predecessors have been guided by the full bench ruling in A. I. R. (30) 1943 Lah. 65, an extract of which is reproduced below which deals specifically with the case of interlocutory orders :‑‑- " The word `case' in section 115 does not always mean the whole suit it is of a very wide import, and means any state of facts judicially considered. This matter is wide enough to include a decision on any substantial question in controversy between the parties affecting, their rights, even though such order is passed in the course of trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a " case decided " within the meaning of section 115, but it will be open to revision only if the other conditions expressly laid down in section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction pf the High Court as that state ". I am in full agreement with the views expressed in this learned judgment and since the case before me cannot be considered as` a case in which the lower Court has acted with material irregularity to the extent that gross injustice or irreparable injury has been done which cannot be remedied otherwise than by the powers vested in a High Court under section 115 Civil Procedure Code the powers of this Court are therefore not attracted.

7. It remains however to consider whether the lower Court has exercised jurisdiction not vested in it by law in which event it would be necessary to set aside the proceedings, even at an incomplete, stage, in order to prevent a Court from continuing to exercise jurisdiction which was ultra vires.

8. It is necessary, therefore, to examine in some detail the relevant portion of section 34 of Regulation 1 of 1950. Sec?tion 34 (1) (a) requires that no Civil Court is competent to entertain or adjudicate upon any question relating‑ to property which may or may not be evacuee property or to determine any right or interest in such property.

9. In assessing the intention underlying the wording of section 34 I am of the view that the words "question arising " which appear in subsection (a) can either refer to a question arising during the course of the proceedings in the Court, of which the Court, suo moto, may take notice, or, if it is a question raised by one of the parties, there must be substance in it. The use of the word " question " in this section must pre‑suppose doubt in the mind of the Court, for a dictionary definition of the word " question " mentions, among others, that doubt is one interpretation. The doubt or question can either arise from the proceedings or upon application to the Court though, in the latter case, a doubt in the mind of the Court is unlikely to arise unless the application is supported in substance in such manner as to make the Court believe that its contents may be true.

10. It would, for instance, be the duty of a Civil Court, in consonance with the directions contained in this section, to refer a question to the Custodian about property if, in the course of evidence led, it become apparent that there was doubt about the status of the property in suit or conversely about the status of the owner or claimant to the property. On the other hand, I am quite unable to believe that the intention of section 34 is to give one or other of the parties to a suit the absolute power to compel stay of proceedings under section 34 by the submission of an application, unsupported by any form of evidence or affidavit, that the opponents were evacuees or that their property should be so treated.

11. If, upon application from one of the parties, every Civil Court were compelled to stay proceedings and to refer the case for decision to the Custodian, the law would be liable to be reduced to an absurdity in virtually every case in which a Hindu were a plaintiff, for it would then be possible for the opposite party to compel the Court to make references even on the most frivolous grounds, and thus to delay the determination of tire suit or appeal in question. I observe in this case that the plaintiff was given opportunity to reply to the allegation that he was an, evacuee and he has supported his contention that he is not by an affidavit, a course which the defendant applicant has not adopted. In passing his order the learned Senior Sub‑Judge has given sound reasons for holding that the plaintiff is not an evacuee on the evidence before him and I can see nothing improper in this order.? The Court came to a conclusion that there was no doubt about the status of the plaintiff and it therefore followed, as a matter of course, that no question had arisen which required decision by the Custodian.

12. The general intention of section 34 is, in my view, clear. In cases of doubt it prohibits a Civil Court from adjudi?cating upon the status of property, leaving that function to the Custodian. It further directs Civil Courts to make references to the Custodian on such questions. But it cannot take away the inherent power vested in any Civil Court to reject an application, unsupported by an affidavit or evidence, which it may consider either untrue, frivolous or vexatious and which causes no doubt in the mind of the Court abort the status of the property in suit.

13. It is not my intention to assume that one or other of the parties to civil proceedings are precluded??????? from drawing the attention of the Court to the status of the property in suit at any stage of the proceedings. Occasions may arise in which, upon reliable evidence, it becomes apparent that the property may be deemed evacuee property or that there is a reasonable element of doubt on that point. In that event the party concerned may approach the. Court and the Court should make reference to the Custodian if satisfied that a reasonable doubt as to the, status of the property exists. The normal course would, however, be for the property concerned to raise the question ab inito.

14. It brief, therefore, my, considered view about the interpretation of this section is that no Civil Court is bound to stay proceedings upon application from one of the parties and toy refer the question to the Custodian unless it feels satisfied that it is faced with adjudicating upon a question which should fall to the Custodian for decision. That stage will only be reached when the Court itself is doubtful as to the status of the property.

15. In the light of these circumstances I do not consider the lower Court has exercised jurisdiction not vested in it by law and the petition is rejected with costs. K. M. A.????????????????????????????????????????????????????????????????????????????????? ??????????? Petition rejected.