1998 PLP 9 (SCMR)

ZIA MAHMOOD MIRZA, J.

Muhammad Ishaq petitioner seeks leave to appeal against an order of a learned Single Judge of the Lahore High Court, dated 4-2-1996 whereby his appeal (F.A.O. No.8 of 1996) was dismissed with the observation that "since nothing has been brought on the record to show that the application was not barred by limitation, this appeal is dismissed as not maintainable".

2. We have heard the learned counsel for the petitioner as also the learned counsel appearing of the caveators. Petitioner brought a declaratory suit against the Province of Punjab and Administrator, Auqaf, Bhakkar on 2-3-1987 claiming that he was the owner in possession of land measuring 110 Kanals situate in Mauza Shahalam Daggar, Tehsil Kallurkot, District Bhakkar. It appears that the Auqaf Department vide Notification dated 10-5-1987 took over and assumed administrative control and management of the suit land treating it as Waqf property as the same was allotted to the petitioner's predecessor in lieu of the land attached to shrine of Hazrat Syed Muhammad Ibraheem, abandoned in India. Instead of challenging this Notification in appropriate proceedings, petitioner continued to pursue his aforesaid suit in the Civil Court. The suit was contested by the defendants. The learned trial Court after framing necessary issues arising from the pleadings of the parties and recording evidence adduced by them found on Issue No.1 "Under the provision of Punjab Waqf Property Ordinance 1979, such matters fall under the jurisdiction of District Judge and Civil Court lacks jurisdiction. When the land has been declared as Waqf property, then the jurisdiction of Civil Court is ousted." It was further held by the trial Court that when it was found that the suit land was attached to shrine of Hazrat Syed Muhammad Ibraheem abandoned in India, allotment thereof was cancelled and the land was transferred back to the Auqaf Department through Mutation No. 107 with the result that the petitioner/plaintiff was no more owner of the suit land and his possession was without lawful authority. With these findings, suit of the plaintiffs was dismissed by the trial Court vide judgment dated 15-3-1993. Appeal filed by the petitioner was, however, accepted by the learned District Judge but only to the extent that it was held that the trial Court having found that it had no jurisdiction, it ought to have returned the plaint to be presented to the proper Court "and so the finding on the remaining issues by the learned trial Court are illegal." It was then directed that "the plaint be returned to the appellants for presentation in the proper Court of law." This was vide judgment dated 3-7-1994. It appears that at this stage, the petitioner presented/filed the plaint suit before the District Judge seeking declaration as to the ownership of the suit land and also seeking to challenge the legality of the aforementioned Notification issued by the Auqaf Department. The suit was dismissed by a learned Additional District Judge as barred by limitation vide judgment dated 13-11-1995 holding that the Notification issued under section 7 of the Punjab Waqf Properties Ordinance, 1979 should have been challenged through a petition under section 11 of the said Ordinance within a period of 30 days from the date of publication of such Notification but the plaintiff instead of filing such a petition instituted a suit in the civil Court and after the dismissal of that suit filed an appeal before the District Judge and again filed a suit to challenge the Notification in derogation of a clear provision of law contained in section 11 of the Waqf Properties Ordinance. It was accordingly held by the Additional District Judge that as the plaintiffs had been litigating in the wrong forum in spite of the clear provision whereunder they could file an application before the District Judge within thirty days of publication of Notification, "therefore, present suit is obviously barred by limitation".

3. Feeling aggrieved, petitioner preferred an appeal (F.A.O. No.8 of 1996) in the Lahore High Court where, it appears, his counsel took time to file some documents to show that the application (under section 11 of the Ordinance) was not barred by time. The counsel, however, did not appear in the High Court on the date fixed nor any documents were filed with the result that the learned Judge in the High Court proceeded to dismiss the petitioner's appeal (F.A.O. No.8 of 1996) holding that "the application of the appellant under section II of the Punjab Waqf Properties Ordinance, 1979 was hopelessly time-barred".

4. Learned counsel appearing in support of this petition has not denied the factual position aforestated. He has, however, contended that the petitioner bona fide pursued the civil suit as also the appeal arising therefrom. He was, therefore, entitled to the exclusion of time so spent in those proceedings under section 14 of the Limitation Act. We find no substance in this contention. On the admitted facts that the Notification in question was issued soon after the filing of the suit by the petitioner, he chose to proceed with the suit and did not challenge the said Notification before the District Judge within a period of 30 days from the publication of the Notification as provided under section II of Waqf Properties Ordinance. He, in fact, not only continued to proceed with the suit and then with the appeal but even after the disposal of his appeal by the District Judge as aforesaid, he filed another suit instead of moving a proper application under section 11 of the Ordinance before the District Judge. In the circumstances, petitioner could not be said to have acted bona fide or with due diligence in prosecuting remedies in wrong forum. He was, therefore, not entitled to exclusion of time under section 14 of the Limitation Act provisions whereof can be invoked and pressed into service only when a party diligently prosecutes his case in good faith in a Court having no jurisdiction to entertain it. Refer Chief Administrator of Auqaf v. Muhammad Ratnzan and others (PLD 1991 SC 102). Petitioner's suit challenging the Notification issued by the Chief Administrator of Auqaf was rightly dismissed by the learned District Judge as time-barred and the view taken by the learned Judge in the High Court is also unexceptionable. Even on merits, petitioner had no case. It has not been denied by his learned counsel that the suit land was allotted to the petitioner's predecessor in lieu of the land abandoned in India which was a Waqf Property. Learned counsel for the caveator was, therefore, right in contending that in view of the definition of ' Waqf Property' as given in section 2 (d) of the Ordinance, the suit land was a Waqf Property. Explanation 2 to section 2 (e) has quite clearly laid down that the property allotted in lieu of or in exchange of Waqf property left in India shall be deemed .to be Waqf property. It was held in the afore-referred case of Chief Administrator of Auqaf v. Muhammad Ramzan and others that if any person has obtained transfer of some agricultural land as a Waqf land in Pakistan, he is estopped from pleading that in fact there was no Waqf land left behind in India. It was observed "once it is proved that the land was allotted in Pakistan as a Waqf land, it is not necessary to go into the question, whether the land left behind in India in lieu of which land was allotted in Pakistan was Waqf property or not." Needless to observe that it has not been denied that the suit land was allotted to the petitioner's predecessor in lieu of the land abandoned in India `which was attached to shrine of Hazrat Syed Muhammad lbraheem.

5. Upshot of the above discussion is that we find no merit in this petition which is accordingly dismissed and the leave sought is refused. A.A./M-13/S Leave refused