2023 PLP 659 (MLD)

GUL HASSAN TAREEN J.

Through this Revision Petition under section 115, the Civil Procedure Code 1908 ("the Code"), the petitioner has called in question the order dated 17th March, 2021 passed by the Court of Additional District Judge-IV, Quetta ("appellate Court") whereby, an appeal preferred by the respondent No. 3 was allowed and the case was remanded back to the Court of Judicial Magistrate-XII/Civil Judge, Quetta ("the trial Court"), for decision of suit in accordance.

2. The brief facts of the case are that the respondent No. 3 instituted a suit for declaration, mandatory and permanent injunction with the averments that the house bearing No. E-8, Wahdat Colony, Brewery Road, Quetta ("subject house") was allotted in his name by the respondent No. 1 vide allotment order No. CEO (S&GAD) dated 12th April, 2017. However, the respondent No. 2 vide its letter No. CEO (S&GAD) dated 19th December, 2018, allotted the subject house to the petitioner, without due course of law. Finally, the respondent No. 3 had sought, that he be declared lawful allottee of the subject house; suspension of the notice of eviction and declaration about the illegal status of the allotment order of the petitioner.

3. The respondents Nos. 1 and 2 submitted their common written statement and the respondent No. 3 submitted his separate written statement. On such pleadings, the trial Court framed issues. The respondent No. 3 examined two private witnesses (PW-1 and PW-3) and one official witness (PW-2). In the meanwhile, the petitioner requested the trial court, to decide the issue of jurisdiction first. The trial Court was pleased to dismiss the suit on 28th December, 2020 by holding that the respondent No. 3 has failed to exhaust the remedy before proper forum. Against such order and decree, the respondent No. 3 preferred an appeal, which came up for hearing before the appellate Court. The appellate Court was pleased to allow the appeal and has remanded back the case to the trial Court with direction to proceed with the suit in accordance with law.

4. The learned counsel for the petitioner Mr. Atif Faizan, Advocate stated that suit of the respondent No. 3 was not maintainable under Rule 6(4), the Residential Accommodation at Quetta (Procedure for allotment) Rules 2019 ("Rules") and placed reliance upon the judgment bearing title Ali Akbar Zehri v. Syed Gul Shah, published in 2012 CLC

190. He stated that since, the respondent No. 3 had not exhausted the appellate forum prescribed by the Rules, as such suit was rightly dismissed by the trial Court.

5. Mr. Muhammad Sharif Advocate assisted by Mr. M. Baqir Bakhtiar Advocate and Mr. Asad Khan Achakzai Advocate stated that the "Rule" referred by the petitioner's counsel is not applicable to the facts of the case; stated that the trial Court twicely rejected the application of the petitioner under Order VII rule 11, the Code, however, surprisingly on the petitioner's request, the suit was dismissed. He stated that the petitioner had not impugned the first two orders of the trial Court, hence Estoppel applies against the petitioner. Finally he placed reliance on the case of Dr. Raees M. Mushtaque v. Province of Sindh through Secretary Food 2018 MLD

918. The learned Assistant Advocate General supported the petitioner.

6. I have heard the arguments at considerable length and gone through the record. In the suit, issues of law and facts were framed by the trial Court. The issues are based upon mix questions of law and facts. For such reason, the trial Court, instead of exercising jurisdiction under Order XIV, rule 2, the Code, decided to record evidence. The trial Court recorded statements of three witnesses produced by the respondent No.

3. The factual controversies cannot be decided under Order VII, rule 11 or Order XIV, rule 2, the Code. The only mode for deciding the factual controversies is the recording of evidence. When a Court considers that the controversy to be decided, requires recording of evidence and also proceeds to record evidence, then at the mid of evidence, the provisions of Order VII, rule 11, or Order XIV, rule 2, the Code, cannot be pressed into service, to non-suit a party. The case law cited at bar, by the counsel of respondent No. 3 is relevant. In the case of Dr. Raees M. Mushtaque through General Attorney v. Province of Sindh through Secretary Food and 3 others, published in 2018 MLD 918, the Sindh High Court, in the last paragraph, has held as under: "As observed above, in this matter issues have already been framed and matter is ripped for evidence as stated by the parties counsel, we have perused the pleading of the parties showing that parties are seriously at issue, therefore, the court instead of rejecting the plaint could decide the dispute by referring to the evidence. Order of rejection of plaint was not warranted in the circumstances." Where evidence commences, then resort to the provisions of Order VII, rule 11 and or Order XIV, rule 2 of the Code is not a proper mode for the decision of the suit. I am fortified by the case law bearing title Mst. Karim Bibi and others v. Zubair and others, published in 1993 SCMR 2039. The question of fact or a mixed question of law and fact, cannot be effectively decided without recording the evidence. I place reliance on the case of Bank of Credits and Commerce and others v. Asrar Hussain and others, published in 2007 SCMR

852. The provisions of Order VII, rule 11, the Code, apply to the very initial stage of the suit while that of Order XIV, rule 2, the Code, apply at the latter stage, after issues have been framed. However, during the course of evidence, the application of the mentioned provisions is not a safe course.

7. The contention of the petitioner's counsel to the effect that without exhausting the remedy provided by the Rules, suit was not competent, is not correct. It has been settled throughout that where a statute provides an alternate remedy or forum, then, if the act of public functionary is statedly mala fide, void or without jurisdiction, then the general jurisdiction of a civil court under section 9 of the Code is not barred.

9. In the suit and the prayer clause (E), the respondent No. 3 has sought that the allotment order of the petitioner is void. In the case of Messrs Mardan Ways SNG Station v. General Manager SNGPL and others, reported in 2022 SCMR 584, in paragraph No. 7, the Hon'ble Supreme Court of Pakistan has held: "

7. 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.

" When an action of a public authority is stated to be without jurisdiction and void, then plaintiff is within his rights to maintain suit before civil court under section 9, the Code. Reliance may be placed on the case of Muhammad Nazir Khan v. Ahmad and 2 others, reported in 2008 SCMR

521. In the instant case, the trial Court has yet to determine whether the cancellation of the allotment of the respondent No. 3 by the respondent No. 1 is legal, void or otherwise, however, the suit was dismissed before deciding such question through evidence. Since the act of the respondent No. 1 was a determining factor for deciding the question of jurisdiction under the Rules or the section 11 of the West Pakistan Government Lands and Building (Recovery of Possession) Ordinance, 1966, therefore, the suit dismissal order was not correct. Plaint can only be rejected if all relief claimed by plaintiff are barred under law. Even if one of the prayers is maintainable, plaint cannot be rejected. I may place reliance on the case of Shahzad v. IVth Additional District Judge, Karachi (East), published in PLD 2016 Sindh 26 and Attaullah v. Sanaullah, reported in PLD 2009 Karachi 38.

10. The trial Court through orders dated 23rd October, 2019 and 09th December, 2020, held that suit, is competent and the issues require recording of evidence, however, on 28th December, 2020, contrarily held that suit is not competent and has not referred to the evidence of PWs. The order dated 28th December, 2020 is not in line with the former two orders. The appellate Court has rightly set aside the order and decree dated 28th December, 2020 passed by the trial Court. Resultantly, the order dated 17th March, 2021 passed by the appellate Court is upheld. The revision petition stands dismissed. Parties shall bear their own costs. SA/184/Bal. Petition dismissed.