2026 PLP 727 (CLC)

SADIQ ALI, J.

Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has assailed the judgment and decree dated 03.11.2019 passed the learned District Judge, Abbottabad, whereby revision petition filed by the petitioners against the order dated 16.09.2019 of the learned Civil Judge-II, Abbottabad was dismissed.

2. In essence, on 08-06-2017, the present petitioners filed a civil suit bearing No. 502/1 against the respondents, seeking a decree for permanent injunction and possession, as fully detailed in the headnote of the plaint. Along with the suit, the petitioners also filed an application for the grant of temporary injunction. The respondents appeared before the learned trial court and contested the suit by filing their written statement as well as a written reply to the application for temporary injunction. During the hearing of arguments on the said application, the learned trial court, instead of deciding the application on merits, returned the plaint to the petitioners under Order VII Rule 10 of the Code of Civil Procedure (C.P.C.), directing them to present it before the proper forum, vide order dated 16.09.2019. Dissatisfied with the said order, the petitioners preferred a revision petition, which too was dismissed by the competent court vide judgment dated 03.11.2019, hence, the instant constitutional petition.

3. Despite service non-appeared on behalf of the petitioners. I have heard arguments of learned counsel for respondents and perused the record with his able assistance.

4. A notice for removal of encroachment was issued under Section 108 of the Cantonment Act, 1924, by the cantonment Executive officer, Abbottabad, directing the affected party to remove the alleged encroachment. In response to the said notice, the aggrieved party instituted a civil suit before the competent civil court, challenging the legality, propriety, and jurisdictional validity of the said action. The maintainability of such a suit finds its legal basis under Section 9 of the Civil Procedure Code, 1908, which confers jurisdiction upon civil courts to try all suits of a civil nature unless their cognizance is expressly or impliedly barred by statute. Section 9 reads as follows: "The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."

5. The notice issued under Section 108 of the Cantonment Act, being administrative in nature and having the effect of affecting the civil rights of the petitioners particularly in relation to immovable property, possession, and use squarely raises issues that are of a civil nature. These include questions relating to title, possession, lawful occupation, and alleged encroachment, which fall well within the scope of civil adjudication. Moreover, there is no express bar under the Cantonments Act, 1924, that ousts the jurisdiction of civil courts in matters where executive actions are challenged on the grounds of illegality, arbitrariness, malice, or want of jurisdiction. Even where an alternative remedy may be available under the statute (such as appeal or revision before a higher cantonment authority), the civil court's jurisdiction is not barred where the action impugned is alleged to be without lawful authority or in violation of fundamental rights or natural justice.

6. It is a well-established principle of law that where an administrative or executive action results in civil consequences, and particularly where the rights of property or possession are involved, the jurisdiction of civil courts cannot be lightly excluded. In the absence of a statutory bar and in view of the nature of the relief sought, the suit is therefore maintainable under section 9 of the C.P.C.

7. The available record further shows that the learned lower courts have erred in their findings by holding that the petitioners had challenged the notice of removal of encroachment through a civil suit and that, for all practical purposes, the said notice pertained to an encroachment allegedly made on public property, namely a kassi (watercourse) or drainage channel. Based on this assumption, the lower courts concluded that the only proper remedy available to the petitioners was to approach a Tribunal constituted under Section 12 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1997.

8. However, such a conclusion is legally misconceived and factually incorrect. The aforementioned Act has no applicability to the present case for the reason that the notice in question was not issued under the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1997, but rather under section 108 of the Cantonments Act, 1924, by the Cantonment Executive Officer, Abbottabad Cantonment (respondent No.1). The jurisdiction and legal framework under the Cantonments Act, 1924, are entirely distinct and independent of the provincial law cited by the learned courts below.

9. It is therefore evident that the reliance placed by the learned courts on the provisions of the 1997 Act to dismiss or undermine the maintainabitity of the civil suit is misplaced. The Cantonment Executive Officer derives his authority from a federal statute, and any action taken thereunder, especially when it affects civil rights such as possession or title, can be challenged before a civil court unless specifically barred by law. As there is no express or implied bar to the jurisdiction of the civil court under the Cantonment Act in matters involving civil rights, the suit filed by the petitioners was very much maintainable. The apex court in case titled Mardan Ways SNG Station v. General Manager SNGPL and others (2022 SCMR 584) has held that:- With regard to bar of jurisdiction contained in any statute we are clear in our mind and it is concurrently declared by this court that if in any statute there is a bar of plenary jurisdiction of civil court, the bar will be applicable if the authority acts in accordance with the said statute and its acts, orders do not violate the jurisdiction conferred upon that authority under the said statute then the bar of jurisdiction contained in the said statute applies and if the authority acts or passes any order in violation of the jurisdiction vested in it under the said statute and transgresses jurisdiction or the orders or action if scrutinized keeping in view the jurisdiction available under the said statute and the orders or action is found without jurisdiction then certainly the bar contained in the said statute on the plenary jurisdiction of the civil court is not applicable and the suit would be competent.

10. In view of the discussion made hereinabove, it is evident that the learned lower courts have erred in law by returning the suit filed by the petitioners with the direction to present it before the so-called "proper forum." Such findings are based on an incorrect interpretation of the applicable legal provisions and a misapprehension of the jurisdictional framework governing the matter at hand.

11. Accordingly, this writ petition is allowed. The impugned judgments and orders passed by both the learned lower courts are hereby set aside. As a result, the case is remanded to the learned trial court with the direction to restore the suit to its original number and proceed with the matter strictly in accordance with law, after providing due opportunity of hearing to all parties concerned. UN/34/P Petition allowed.