2023 PLP 797 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

On 09.02.2019, the respondents/plaintiffs instituted suit under section 8 of the Specific Relief Act, 1877 against petitioners and respondents Nos.12 and 13 (defendants) seeking recovery of possession from the haters. The loud stance of the plaintiffs was that having purchased subject area through Mutation No.4861, they stood its exclusive owners; that defendants being tenants were in possession, who refused to provide the formers' share of produce, thus they became unauthorized occupants. The paras Nos. 2 and 3 of plaint to that effect being relevant are reproduced below:-

2. The defendants contested the suit on legal as well as factual side. They though denied relationship of landlord and tenant, yet strongly asserted that Civil Court lacked jurisdiction to try the suit. Nonetheless, Trial Court to proceed further settled the following issues:-

1. Whether the plaintiffs are entitled for the decree of possession against defendants regarding land measuring 8-kanal 0-Marla comprising Khewat and Khatooni No.499/1788 Killa No.18 situated in Mouza Cheemon as per record of rights for the years 2008-2009 well detailed in the head note of plaint? OPP.

2. Whether the suit of plaintiff is not proceedable in its present form? OPD-1 and 2.

3. Whether the plaintiffs have no cause of action? OPD-1 and 2.

4. Whether the suit of plaintiffs is time barred? OPD-1 and 2.

5. Whether the suit of plaintiffs is bad due to mis-joinder and non-joinder of the parties? OPD-1 and 2.

6. Whether the plaint is liable to be rejected under Order VII, rule 11, C.P.C.? OPD.

7. Relief. Consequent thereupon, the parties in pros and cons examined their evidence and as a result of its appreciation, although while returning positive findings on issue No.1, suit vide judgment dated 06.04.2021 was decreed, yet independent decision on issue No.6 was not given. This decree was further replicated by learned Additional District Judge in exercise of appellate jurisdiction via judgment dated 26.06.2021. The petitioners/defendants being unhappy with unanimous verdicts of two Courts below filed cited petition to check legality and validity thereof.

3. Mr. Muhammad Mansha, learned counsel for the petitioners argued that proper and relevant issues were not settled, thus just and fair trial could not be conducted; that via written statement, specific preliminary objection with regard to jurisdiction of Civil Court was raised, but the fora below despite that said question goes to the very roots of the case did not make any effort to decide it, whereas same was to be decided at prior point of time before proceeding any further; that under section 77 of the Punjab Tenancy Act, 1887, the suit was specifically barred before Civil Court, therefore per Order VII, rule 11(d), C.P.C., the plaint was liable to be rejected, especially when through its contents the plaintiffs asserted relationship of tenant and landlord. In contra, Ms. Kashwar Naheed, learned counsel for the respondents/plaintiffs while supporting the impugned concurrent decisions submitted that issues were framed perfectly, whereas during proceedings before two Courts below, no independent petition for rejection of the plaint was made, and that defendants themselves denied the relationship of tenancy, thus Civil Court was the right forum to decide the litigation in hand.

4. Arguments heard and record consulted with able assistance of worthy counsel for the parties.

5. As noted above, it was pertinent stance of the plaintiffs that defendants were ploughing the suit land being tenants, who having refused to pay share of produce became unauthorized occupants. To meet with said assertion, the defendants specifically raised plea that Civil Court lacked jurisdiction to try the suit, which was the core point, but to this effect, relevant issue was not framed. No doubt, while returning findings on issue No.6, such question could be resolved, but unfortunately it remained unattended before two Courts below. There is no cavil that point of jurisdiction depends upon respective pleadings of the parties. Needless to mention here that every Court/Tribunal is bound to look into issue relating to bar of its jurisdiction at prior point of time and decide it under the law instead of escaping to answer such important aspect of the case on the mere concession of one or the other party. Reliance is placed on "Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others" (2008 SCMR 240) and for ready reference its relevant conclusion is given below:- "This is an established law that jurisdiction cannot be assumed with the consent of the parties and notwithstanding the raising of such an objection by the parties, the forum taking cognizance of the matter must at the first instance decide the question of its jurisdiction. There can be no exception to the principle that an order passed or an act done by a Court or a tribunal not competent to entertain the proceedings is without jurisdiction and that it is mandatory for the Court or tribunal as the case may be to attend the question of jurisdiction at the commencement of the proceedings because the jurisdictional defect is not removed by mere conclusion of trial or inquiry and objection to the jurisdiction can be raised at any subsequent stage. This Court in Rashid Ahmad v. State PLD 1972 SC 271 held as under:- "If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction." Thus, if any such objection is raised by the defendants, the forum proceeding with the matter must decide the question of its jurisdiction at the first instance, whereas defect of this type cannot be removed by mere conclusion of trial as the same being point of law even can be raised at any subsequent stage. In the case in hand, the plaintiffs had themselves claimed that defendants were inducted in subject area as tenants, whereas per maxim "once a tenant is always a tenant", does not oust them from the definition of tenants, especially when default to pay share of produce is one of the provided grounds to evict the tenant(s) by filing Ejectment Petition before Revenue Authority. The Courts below without consulting or discussing section 77(3) of the Punjab Tenancy Act, 1887 passed the impugned verdict while merely relying upon oral evidence, whereas Entries of Revenue Record showing the petitioners/defendants still to be tenants were not consulted at all.

6. For the foregoing reasons, as matter needs to be remanded, I have intentionally avoided to discuss the merits in depth, lest it should prejudice case of either side before Courts below. Consequently, instant Civil Revision stands allowed, impugned concurrent decrees are set aside and suit is sent back to learned Trial Court, which before proceeding therewith any further will decide the question regarding its jurisdiction. The parties shall appear before learned District Judge, Mandi Bahauddin on 14.11.2022 for entrustment of suit file to Court of competent jurisdiction for further proceedings. IH/S-97/L Revision Petition allowed.