2007 PLP 1126 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This appeal by the leave of the Court is directed against the judgment dated 11th July, 1995 passed by the Lahore High Court, Lahore whereby civil revision submitted by the appellant challenging the judgments/decrees dated 25th June, 1988 and 11th June, 1990 passed by the Civil Judge and Additional District Judge, Faisalabad, respectively, dismissing his suit for declaration and injunction for want of jurisdiction had been maintained.

2. Precisely stating the facts of the case are that appellant got allotted Plot No.298/B, Gulistan Colony-II, Faisalabad against a consideration of Rs.23,000 on the recommendation of Governor Punjab. Subsequently, possession of the same was handed over to him. He was about to start construction over the plot, after getting approved site plan etc. but on 18th November, 1982 without issuing show-cause notice to him the Martial Law functionaries in purported exercise of the powers under Martial Law Instruction (MLI) No.23, dated 17th August, 1977, issued by the Martial Law Administrator Zone "A", directed cancellation of the allotment of the plot from the name of the appellant, as a consequence whereof the Faisalabad Development Authority implemented the order of the Martial Law functionaries and transferred the same plot on 17th July, 1985 to the respondent Safdar Khan son of Jehan Khan (deceased) through his representatives. Appellant questioned the order of the cancellation of the appellant by instituting suit. The respondents contested the suit. Learned trial Court struck as many as eight issues arising out of the pleadings of the parties including the one relating to jurisdiction of the Court to entertain the suit. Evidence, so led by the parties was recorded in support of their respective contentions but surprisingly, vide judgment dated 25th June, 1988, the appellant was non-suited by the Civil" Court holding that it has no jurisdiction under paragraph 10(b) of the MLI No.23. In appeal the District Judge' vide order, dated 11th June, 1990 maintained the order/decree of the trial Court on the question of jurisdiction. However, learned High Court did not grant relief to the appellant as the revision filed by him was dismissed by means of impugned judgment, though findings were also recorded by it on the issues relating to the merits of the case for the first time in exercise of revisional jurisdiction under section 115, C.P.C. hence this appeal.

3. Leave to appeal was granted to examine the following questions: (i) Whether the principle of natural justice is applicable to the case in hand? (ii) If the answer to the above question is in the affirmative, whether non-observance of the same rendered the cancellation order of allotment of the plot as coram non judice?

4. Learned counsel appearing for the appellant contended that order dated 18th November, 1982 passed by the Martial Law functionaries in purported exercise of jurisdiction under MLI No.23, dated 17th August, 1977, being coram non judice was not sustainable in the eye of law as the appellant was condemned in violation of the principle of natural justice enshrined in the maxim audi alteram partem. To elaborate his contention, he relied upon the judgments in the cases of Muhammad Swaleh and another v. Messrs United Grain and Fonder Agencies PLD 1964 SC 97; Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah. 49 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26.

5. Learned counsel for respondents contended that before cancelling the plot in dispute from the name of appellant, a detailed inquiry was conducted by the concerned authorities during course whereof it transpired that appellant being owner of the house situated in Faisalabad was not eligible for getting a plot allotted in any of schemes mentioned in MLI 23, therefore, the plot was rightly cancelled from the name of appellant. However, learned counsel when questioned "whether show-cause notice prior to, cancellation was issued to appellant or he was provided right of 'audience before taking adverse action against him?" could not answer satisfactorily and conceded for remand of the case to the Civil Judge for decision on merits in accordance with law.

6. We have heard the parties counsel and have also perused the judgment dated 11th July, 1995 passed by a learned Single Judge in chambers of Lahore High, Lahore as well as MLI No.23, dated 17th August, 1977. It is to be noted that learned trial Court despite recording evidence of both the parties on the issues arising out of pleadings of the parties refrained to dilate upon the merits of the case and non-suited the appellant on deciding the issue of jurisdiction in affirmative, holding that under paragraph 10(b) of MLI No.23, it has no jurisdiction to adjudicate upon the merits of the case. As far as the question of jurisdiction of the Court is concerned, it has always considered to be of a fundamental nature in judicial proceedings and the Court seized with the matter preferably should decide such question on priority basis instead of considering the merits of the case but in such situation time should not be consumed in recording evidence on the issues pertaining to the merits of the case and if it is possible to decide the question of jurisdiction without recording evidence, it should decide the same expeditiously as early as could be possible with a view to save its own time as well as the time of public litigants. However, once the Court had consumed the time in recording evidence, then efforts should be made by it to dispose of the case both on law points including the question of jurisdiction as well as on merits.

7. Be that as it may, in the instant case the findings recorded by the Civil Court on the issue of jurisdiction were maintained by the Appellate Court vide order/decree dated 11th June, 1990, as a result whereof the appellant was non-suited for the reason of non-availability of jurisdiction of the Civil Court against the orders of Martial Law functionaries, but surprisingly learned High Court in its limited jurisdiction under section 115, C.P.C. proceeded to decide the issues on merits as well, without realizing that such exercise at a revisional stage is likely to cause prejudice to any of the parties before it became the one out of them against whom decision has been given on merits has been deprived of the right of appeal before the next Court. Therefore, we are inclined to hold that on this score alone the impugned judgment is not sustainable in law.

8. Now turning towards the decision of the learned High Court as well as the Appellate and Civil Courts, relating to the issue of jurisdiction is to be noted that under 'paragraph 10(b) of.MLI No.23 the jurisdiction of the Civil Court including the High Court and the Supreme Court has been ousted but it cannot be considered to be absolute ouster because if an order has been passed without providing opportunity of hearing to a party, it is treated to be coram non judice as held by this Court in the case of Muhammad Swaleh (ibid). Relevant para. therefrom is reproduced hereinbelow:-- "An order can under this section be attacked on three grounds and it is the assumption of the third ground that an exercise of jurisdiction may be illegal or irregular and yet the order passed, may not be void and without jurisdiction. By merely showing therefore, that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of same statutory provision or principle of natural justice as would render the proceedings coram non judice." This Court had another occasion to examine the question of absolute bar placed upon the jurisdiction of the Civil Court by Martial Law Orders, Regulations and Instructions and it opined in the case of Malik Ghulam Mustafa Khar (ibid) that if the order is coram non judice, without jurisdiction, malice in law and violation of the constitutional provisions then notwithstanding the statutory bar, the High Court had jurisdiction. This judgment has been maintained by this Court in the case of Federation of Pakistan (ibid). As in instant case admittedly opportunity of hearing was not granted to appellant before passing the cancellation order of plot from the name of appellant by the Martial Law functionaries, therefore, it being an order coram non judice was not immune from judicial review by the Civil Court. Thus, we are persuaded to hold that the Civil Judge wrongly non-suited the appellant on the question of jurisdiction, contrary to pronouncement of this Court referred to hereinbefore. As far as the learned High Court is concerned, it might have refrained to dilate upon the merits of the case by deciding all the issues independently because on account of this reason injustice and prejudice has been caused to appellant as he has been deprived from his valuable right of appeal available to him, if the Civil Court had non-suited him on merits as well. Thus, for the foregoing reasons, appeal is allowed, as a result whereof impugned judgment dated 11th July, 1993 passed by the learned High Court, as well as the judgments of Civil and Appellate Courts dated 25th June, 1988 and 11th June, 1990, respectively, are set aside and case is remanded to the Civil Judge, Faisalabad for decision of the same on merits. Keeping in view the material which is already been available on record, expeditiously as far as possible within a period of three months, as the matter is lingering on from 1982 onwards. Compliance report should be sent by the concerned Civil Judge through Registrar of this Court for our perusal in chambers. No order as to costs. S.A.K./M-42/SC Appeal accepted.