1969L30 (PLP)

Nemo for Respondents Nos. 1 to

5. Khan Fazal‑ur‑Rahman Khan for Respondents Nos. 6 to

10. Date of hearing: 7th May 1968. This revision petition calls in question the order dated the 2nd of April 1963 of the Administrative Civil Judge, Rawalpindi, passed in the suit filed by the respondents for cancellation of the decree for specific performance obtained by the petitioner from the Civil Court at Rawalpindi, on the basis of the deed of exchange pertaining to house No. H/128, Murree Road, Rawalpindi, in lieu of property abandoned by him in India. The decree was sought to be declared void on the grounds of fraud. To have a clearer picture of the case it is necessary to recount the facts leading to this litigation.

2. The petitioner approached the Custodian of Evacuee Property in revision against order dated the 9th of February 1956 of the Deputy Custodian (General), refusing confirmation of an agreement of exchange dated the 26th of February 1950 of the evacuee house forming subject-matter of the present suit in lieu of property abandoned by him in India, with Dr. Chaman Lal, its evacuee owner. In view of the Notification No. S.R.O. 143 dated the 1st of April 1959 published in the Gazette of Pakistan (Extraordinary) of the 1st of April 1959, issued by the Central Government under section 19 of the Pakistan (Administration of Evacuee Property Acts, 1957 (Act XII of 1957), the learned Custodian by his order date 17th of August 1959 accepted the revision petition, confirmed the agreement of exchange and set aside the orders of the authorities below. He further directed that the petitioner was at liberty to bring a suit in a Civil Court for getting the agreement specifically performed under clause (a) of subsection (3) of section 16 of Act XII of 197, to enable him to become owner of the property in dispute. Tire petitioner in compliance with the order of the Custodian filed a suit for specific performance against Dr. Chaman Lal in the Civil Court at Rawalpindi on the 4th of September 1959 aria a decree for specific performance was passed in his favour on the 31st of March 1960. Meanwhile on the 25th of November 1959, the house is said to have been transferred to the respondents by the Deputy Settlement Commissioner, Rawalpindi, treating the property as part of the Compensation Pool under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. On finding that the house was being claimed by the petitioner as its owner on the strength of the exchange confirmed by the Custodian and the Civil Court decree for specific performance, the respondents filed the present suit for declaration and cancellation of the Civil Court decree of 31‑3‑

60. This suit was resisted by the petitioner mainly on the ground that the Civil Court has no jurisdiction to question the order of confirmation passed by the Custodian of Evacuee Property on the 17th of August 1959. It may he pertinent to mention that during the pendency of this suit the respondents approached the Custodian with a review petition praying that the order dated the 17th of August 1959 of confirmation of the alleged agreement of exchange between the petitioner and Dr. Chaman Lal be reviewed. Mr. Justice Sajjad Ahmad exercising powers of Custodian of Evacuee Property (as his Lordship then was) refused to review the order saying that the grounds urged in the petition did not furnish a justification for him to review the order of his Learned predecessor according sanction to the petitioner to bring a suit for specific performance on the basis of exchange agreement executed to his favour. However, towards the close of the judgment the learned Custodian remarked as under:‑ "All these questions are now .sub judice in the suit brought by the petitioners (now respondents) for reversal of the Civil Court decree obtained on the ground of fraud and mis representation aid the Civil Court is now validly seized of the matter to go into those questions and to give a decision thereon. The petitioners have already invoked the remedy available to them under the law and this review petition is rendered infructuous at this stage even on that ground, and is, hereby, dismissed." On the basis of these remarks the Civil Court has by its order under revision held that the suit is purely of civil nature and triable by a Civil Court, especially when according to the learned Custodian the Civil Court is seized of the various questions raised by the respondents in the aforesaid review petition before the Custodian.

3. Dr. Muhammad Asghar has invoked revisional juris diction of this Court under section 115 of the Coda of Civil Procedure and the argument put forward on behalf of the petitioner ii that the order confirming the agreement of exchange passed by the Custodian under section 20(4) was clothed with finality by virtue of the provisions of clause (a) of subsection (1) of section 41 of Act XII of 1957 and the said order was not amenable to the jurisdiction of the Civil Court. Learned counsel further argues that the decree of the Civil Court in the suit for specific performance brought by the petitioner in compliance with the orders of the Custodian was merely a consequential proceeding and the moment the Custodian had approved of the exchange of the property between the petitioner and the evacuee owner, the house in question no longer remained evacuee property. He contends that as the order had been sassed by the Custodian on a date prior to the issuance of Notification No. U‑8‑79‑59 (3113) dated the Ist of August 1959 published in the Gazette of West Pakistan of 28th of August 1959 under section 3 of Act XXVIII of 1958, it did not become a tart of the Compensation tool and the Deputy Settlement Commissioner or any other authority in the Settlement Department was not legally competent to pass any order of transfer in respect of said house, declared and accepted as non‑evacuee property by the Custodian. He maintains that in view of this legal position, order dated the 25th of November 1959 transferring the property in favour of the respondents was without jurisdiction and (ineffective and the respondents were vested with no rights under the said order which was for all intents and purposes corum non judice. He argues that in the circumstances the Civil Court Bias no jurisdiction to entertain the suit for cancellation of the decree for specific performance, which is essentially based on the order of the Custodian, which order is immune from challenge before the Civil Court. Learned counsel for the respondents, however, argues that the order passed by the Custodian on the 17th of August 1959 was a conditional order according to subsection (4) of section 20, which subsection contemplates both conditional and unconditional orders. He maintains that because the order was a conditional one, the order approving the exchange between the evacuee and the petitioner did not become a final order till such time a decree for specific performance was passed by the Civil Court in his favour on the 31st of March 1960 and as the Deputy Settlement Commissioner had transferred the property to the respondents about four months earlier, i.e., on the 25th, of November 1959, the order of the Deputy Settlement Com missioner is a valid and legal order and the decree for specific performance passed by the Civil Court subsequent to that order dealing with evacuee property was itself a nullity. I have heard learned counsel for the respondents at length but I do not find that the order of the Custodian confirming the exchange of evacuee property between the evacuee owner and the petitioner l' can be termed to be conditional order in the sense that it did not finally declare the property in suit as non‑evacuee. The direction for getting a decree for specific performance from the. Civil Court was in the nature of a consequential proceeding for having a deed on the basis of that exchange with regard to Dr. Chaman Lal's property, which was no longer a part of the: evacuee pool vesting in the Custodian. Once he came to that conclusion, it cannot be considered by any stretch of imagina tion that the property entered the compensation pool at any subsequent stage, or the Settlement Authorities were competent to deal with the said property. As regards the observations made by the learned successor Custodian in the Review Petition reproduced above, suffice it to say that the power to declare a particular person or property as evacuee or non‑evacuee was the exclusive jurisdiction of the Custodian under the provision of Act XII of 1957 and it cannot be said that while refusing to set aside the order confirming the exchange, the Custodian delegated his powers to the Civil Court to sit in judgment over that order. The said observations do not yield to any such construction. I, therefore, in agreement with the argument of learned counsel for the petitioner held that orders of the Custodian could not be challenged in a Civil Court directly or indirectly and the suit brought by the respondents is incompetent in view of the provisions of section 41(1)(a) of Act XII of 1957. There is yet another aspect of the case. The respondents can claim locus standi to challenge the decree of the Civil Court only if the order of transfer in their favour is found to be a valid order. Since that order is a case of corum non judice, the respondents have no locus standi to seek cancellation of the C decree of specific performance granted to the petitioner and on that score also respondents' suit is not maintainable in the eye of law. I further find that by this erroneous interpretation of the provisions of Act XII of 1957, the learned Administrative Civil Judge has assumed jurisdiction in the matter which is not vested in him and the case comes within the mischief of section 115(a) of the Code of Civil Procedure.

3. For the reasons given above I set aside the order dated the 2nd of April 1963 of the learned Administrative Civil Judge and hold that the suit is not triable by the Civil Court. The revision petition succeeds and is allowed with costs. A. E. Petition allowed.