1999 PLP 2795 (SCMR)

MUNIR A. SHEIKH, J.

Leave to appeal is sought against the judgment, dated 22-9-1998 of the Lahore High Court through which Revision Petition No. 1425 of 1998 filed by the petitioners against the order dated 23-7-1998 of the learned Additional District Judge accepting the appeal of respondent No. l against the order dated 24-6-1998 passed by the trial Court rejecting his application has been dismissed and the order of temporary injunction passed in appeal by the learned Additional District Judge has been maintained.

2. Respondent No. l was granted lease of the land which is a Waqf Property for a fixed period. On the expiry of the said period, the possession of respondent No. 1 was treated to be unauthorised and resumption of the same was intended, According to respondent No, 1, he had made an application under relevant rules to the Auqaf Department for extension of tease on which no order had been passed, therefore, he filed a civil suit before the Civil Court. In the Civil Suit, a decree was prayed for in the following terms:- (a) It be declared that the plaintiff was a lessee qua the land in question measuring 142 Kanals and 6 Marlas adjacent to Jamia Mosque Farooqabad, District Sheikhupura under the Auqaf Department; (b) That the plaintiff was entitled to get the said land on lease for another period of five years on the payment of lease money 20% above the lease money in which the previous lease was granted; (c) The defendant/Auqaf Department had no right to auction to lease of the land in possession of the plaintiff; (d) A decree for permanent injunction may be issued against the defendants restraining them from interfering in the possession of the plaintiff in the land and also from auctioning the leasehold rights.

3. An application was also made with the suit for temporary injunction. Both the suit and this application was contested by the respondents. One of the grounds was that the Civil Court was not vested with the jurisdiction to issue any order in the nature of temporary injunction restraining the respondents as prayed for in the application during the pendency of the suit. The trial Court dismissed, the application of the respondent/plaintiff for temporary injunction through order dated 24-6-1998 which was appealed against by him before the learned Additional District Judge which was accepted through order dated 23-7-1998, against which revision petition filed by the petitioners was dismissed through the impugned Judgment, dated 22-9-1998, against which leave to appeal has been sought.

4. Learned counsel for the petitioners referring to section 21 of the Punjab Waqf Properties Ordinance, 1979, submitted that the Civil Court was not vested with the ,jurisdiction during the pendency of the suit to issue any order of Prohibitory nature in respect of any proceedings which are covered by the said Ordinance. Section 21 of the Ordinance reads as under:

21. Bar of Jurisdiction.--Save as expressly provided in this Ordinance, no Civil or Revenue Court or any other authority, shall have jurisdiction:-- (a) to question the legality of anything done under the Ordinance by or at the instance of the Chief Administrator; or (b) in respect of any matter which the Chief - Administrator is empowered or under this Ordinance to determine or settle; or (c) to grant an injunction or other order in relation to any proceedings before the Chief Administrator under this Ordinance or anything done or intended to done by or at the instance of the Chief Administrator under this Ordinance.

5. Learned counsel for the petitioner submitted that though this objection was raised and argued before the learned Single Judge of the High Court but no findings have been recorded on the same whereas the revision petition has been dismissed by taking into consideration the judgment of this Court in which it was held that the suit on the ground of mala fides, etc., could be maintained against the authorities. He submitted that it was urged before the High Court that the jurisdiction of the Civil Court was expressly barred as regards prohibitory orders in the nature of injunction during the pendency of the suit as such, jurisdiction had been exercised in this case where it did not vest and the case was aptly covered by section 115 of the Civil Procedure Code.

6. The provisions of section 21 of the Ordinance as reproduced above are clear and unambiguous on the point that no order of prohibitory nature or in the form of injunction against the Auqaf Department could be issued by the Civil Court in respect of any proceedings or acts performed under the said Ordinance sections 8 and 9 of the Ordinance are clear on the question that the matters relating to leases, etc., were covered under the said Ordinance, therefore, the Civil Court's jurisdiction was ousted to pass interim order in the nature of temporary injunction against the petitioner. This view has the support of judgments reported as Muhammad Din and 3 others v. Administrator-General of Auqaf, Pakistan, Islamabad and 2 others (1979 CLC 551), Chief Administrator of Auqaf Punjab v. Allah Ditta and another (1990 CLC 821).

7. The learned Judge of the High Court appears to have not taken into consideration this fact and decided the revision petition keeping in view merely the convenience of the parties and considering that the suit should be decided as early as possible. The question of jurisdiction having been raised should have been decided.

8. In view of section 21 of the Ordinance, the orders passed by the learned Additional District Judge dated 23-7-1998 and the High Court dated 22-9-1998 are not sustainable and are liable to be set aside. At this stage, learned counsel for the respondents made an offer that in case the lease of the land in dispute is auctioned from 1-6-1999, he would withdraw his suit and participate in the auction. This offer has been accepted by the learned counsel for the petitioners.

9. In view of the above, we convert this petition into appeal and the same is accepted, the orders dated 23-7-1998 and 22-9-1998 passed by the learned Additional District Judge and the High Court, respectively are hereby set aside and we hold that the Civil Court was not vested with the jurisdiction to pass order in the nature of temporary injunction in view of bar contained in section 21 of the Ordinance. In view of the offer made by the learned counsel for the respondents and accepted by the learned counsel for the petitioners to auction the leases from 1-6-1999, the suit itself from which this petition has arisen is allowed to be withdrawn and dismissed as such, formal order about which shall be made by the trial Court in view of this settlement between the parties on the receipt of the copy of this judgment. There will be, however, no order as to costs. M.B.A./C-40/S Order accordingly.