2016 PLP 1832 (YLR)

MUHAMMAD DAUD KHAN, J.--Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Jehanzeb Khan, the petitioner, has impugned the judgment dated 23-06-2015 rendered by learned Zilla Qazi, Dir Lower, whereby the revision petition filed against the order dated 09-04-2015 passed by learned Illaqa Qazi-V, Timergara, was allowed and as a consequence thereof the plaint of the petitioner was returned to him for presenting to the proper forum.

2. Briefly stated facts of the petition as deciphered from the record are that Jehanzeb Khan, the petitioner/plaintiff, filed a suit against respondents for perpetual injunction against the respondents Nos. 1 to 9 for restraining them not to encroach upon the private property of the plaintiff at the Eastern side by leaving the actual Award property at the Western side.

3. When put on notice by the learned lower Court respondents/defendants contested the suit inter alia on the ground that since Award has been made under Land Acquisition Act, 1894 and the jurisdiction of Civil Court is barred; that the petitioner had already approached this Court in constitutional petition which was withdrawn by the plaintiff; that the defendant have not encroached upon the private property of the petitioner. Along with their written statement, defendants/ respondents filed application under Order VII, Rule 11, C.P.C. for outright dismissal of plaint.

4. The learned trial court vide his judgment/order dated 09-04-2015 dismissed the said application which was impugned before the learned Zila Qazi who accepted the appeal and returned the plaint of petitioner vide impugned order dated 23-06-2015 and now petitioner has come to this Court for the same relief.

5. We have heard arguments of the learned counsel for the parties and gone through the record appended with the petition.

6. It appears from the record available on file that the petitioner simply seeks permanent injunction against the respondents for restraining them not to encroach upon the private property of the plaintiff at the Eastern side by leaving the actual Award property at the Western side. He didn't challenge the Award or its proceedings. It further appears from the record available that certain clerical mistakes regarding boundaries of the acquired area have been taken place. DSP Head Quarters Timergara in his report dated 26-03-2012 has also informed the high ups regarding difference between the two sketches. The learned District Judge has landed into the fields of error by observing that Civil Court has no jurisdiction and misinterpreted section 18 of the Act. Ouster of the jurisdiction can be claimed when impugned order/action is found to be within the four corners of the Statute under which it is passed or taken. The provisions contained in Statute ousting the Court of general jurisdiction is to, be construed very strictly and unless case falls within the letter and spirit of the barring provisions it would not be given effect to. It is well-settled that where a special forum is created by a statute and a special remedy is provided then that forum shall have exclusive jurisdiction to adjudicate upon such matters. No doubt, the Act provides that any person aggrieved by the Award of the Collector may raise objections under section 18 or section 30 of the Act with respect to the matters specified therein, but if a person is not aggrieved by such Award, the question of his raising objections under section 18 or section 30 of the Act would not arise. While going through the record appended with the petition, one could reach to an irresistible conclusion that the petitioner is not aggrieved by the Award rather he simply seeks permanent injunction against the respondents for restraining them not to encroach upon the private property of the plaintiff at the Eastern side by leaving the actual Award property at the Western side. He was, therefore, not required by law to raise any objection to that Award. Civil Court is Court of general and ultimate jurisdiction to try all suits of civil nature unless expressly or impliedly barred by law. Finds its base from the maxim 'ubi jus ibi remedium' (there is no wrong without remedy).

7. In the given circumstances, the Civil Court has got jurisdiction to try the suit under the provision of section 9 of C.P.C. In support, we are fortified by case law "Saifur Rehman v. Fazlur Rehman (PLD 1984 Peshawar 219)", "Messrs Bambino v. Govt. of Sindh (2002 MLD 1673).

8. In light of the above observations, the instant writ petition is allowed and as a consequence thereof impugned judgment/ order of the learned District Judge is set aside and the case is remitted back to the learned Senior Civil Judge/AIQ Dir Lower with the directions to appoint fresh Local Commission who in presence of the parties in the light of notification under section 4 of the Act determined the boundaries of the acquired area and encroachment upon the private area of petitioner, if any, and then to decide the case strictly on merits in accordance with law within the shortest possible period preferably within 06 months. The parties are directed to appear in the Court of learned Senior Civil Judge/AIQ Dir Lower accordingly. COC No. 15/2015 and 21/2015 are disposed of being infructuous. ZC/100/P Petition allowed.