2003 PLP 1487 (YLR)

2. After the event of enhancement of the rent the Anjuman filed a suit (F.C. Suit No. 156 of 1998) in the Court of IInd Senior Civil Judge, Umerkot, pleading therein substantially that paragraphs. 8, 9, 13, 14, 18 and 19 of MLR‑115, have been declared repugnant to Islam and have ceased to have any effect from 23‑3‑1990, therefore, the resumption of the land in question has become nullity to the eye of law and consequently Province of Sindh and Sindh Land Commission, are liable to refund the amount of Rs.27,12,545 recovered as lease money after 23‑3‑1990. In the last it was prayed that Anjuman be declared exclusive owner of the land in question and the order passed in September, 1998 enhancing the lease money is illegal and void. Further prayer was for permanent injunction restraining the defendants/respondents from interfering with the ownership and possessory rights of the Anjuman over the area in question and acting upon order passed in September, 1998. It was also prayed that respondents be directed to pay back the amount of Rs.27,12,545 with interest at bank rate from the date of suit till the amount is realized.

3. Despite service of notice, the Province of Sindh and Sindh Land Commission failed to file written statement and the suit was ordered to proceed against them ex parte.

4. An application for setting aside ex parte order filed by the defendants/ respondents was dismissed. Thereafter, the suit was decreed by judgment and decree dated 29‑5‑1999 on the basis of evidence produced by Anjuman in shape of an affidavit of their President and Attorney Mubarak Ahmed Tahir.

5. The judgment and decree dated 29‑5‑1999 were challenged by the respondents/defendants through Civil Appeal No.47 of 1999 before the District Judge; Umerkot, who, assigned the same to Additional District Judge, Umerkot. The learned Appellate Court by its judgment dated 27‑7‑2002, set aside the judgment and decree of the trial Court and remanded the suit to it with direction to permit the respondents/defendants to file the written statement within 30 days subject to the payment of cost Rs.5,000 to the applicant/plaintiff and then frame necessary issues and decide the suit on merits after providing the parties with an opportunity to produce their evidence. That judgment of the learned Appellate Court has been assailed through present revision application.

6. It has been argued on behalf of the applicant that the suit filed by the applicant was valued at Rs.27,12,545 and court‑fee was paid on that amount, therefore, the District Court had no pecuniary jurisdiction over the matter. Appeal entertained and decided by the learned Additional District Judge, Umerkot was without jurisdiction. It was next contended that the appeal was time -barred by two days as the application for copies of judgment and decree of the learned trial Court was submitted on 1‑6‑1999 and the copies were supplied on same day, therefore, 30 days time for filing appeal expired on 30th June, 1999. Thus the appeal filed on 2nd July, 1999 was barred by limitation. The third objection from applicant's side was that the appeal was filed by Deputy District Attorney in the name of respondents without any legal and valid authority. In support of his contentions, applicant's learned Advocate referred to 2000 CLC 414, 1997 SCMR 919.

7. Mr. Masood Ahmed Noorani, Additional Advocate‑General started his arguments attacking the suit filed by the Anjuman, stating that after resumption of the land in question under MLR‑115, the Anjuman had got it oil lease and had been paying the lease money for decades together. After that their claim of ownership over the disputed land only on account of the judgment of Honourable Apex Court declaring some clauses of the MLR to be repugnant to Islam, was absolutely mala fide and illegal. The judgment of the learned trial Court, whereby such a frivolous suit was decreed, was absolutely a void decision. In respect of such suits and decisions no ordinary procedural bars including that of limitation can apply.

8. The learned Additional Advocate- General further argued that even if the Additional District Judge had no pecuniary jurisdiction over the matter, still he could remand the suit in the interests of justice. He contended in the last that the matters involving huge Government property are definitely of public importance and are to be dealt with and decided on merits.

9. It is a fact that the suit filed by the Anjuman was involving the amount of Rs.27,12,545 and maximum court‑fee of Rs.15,000 was paid on it, therefore, it can be held without any reservation that the value of the suit was much beyond the appellate pecuniary jurisdiction of .the District Court which was up to Rs.500,000 only. The proceedings in appeal and the judgment passed in it were, therefore, without jurisdiction. Obviously the judgment impugned through this revision application being without jurisdiction is not sustainable.

10. However, once this Court is seized of the case in exercise of revisional jurisdiction it can in accordance with section 115, C.P.C. make such order in the case as it thinks fit. The entire case is open and this Court has to examine the legality or the judgment and decree of the trial Court also for passing an appropriate order in the case.

11. As mentioned above the learned Additional Advocate‑General, contended that after resumption of the land in question under MLR‑115 it could not revert to the Anjuman after the judgment of the Honourable Apex Court and or from 23‑3‑1990 when certain paragraphs of MLR‑115, became ineffective. In reply to that contention Mr. Jhamat Jethanand, the learned advocate representing the Anjuman argued that in fact the process of resumption of the land in question was yet to be completed as it was not granted to the tenants.

12. The contention of Mr. Jhamat Jethanand is completely devoid of substance. It is the case of Anjuman themselves that the land in question remained with them on lease after its resumption, under the agreements of lease executed by respondents/defendants (Government of Sindh and Sindh Land Commission) from time to time. On examination of provisions of MLR‑115 it becomes clear that the lease of the land in question was granted under its paragraph 21 part (v) relating to utilization of surrendered and resumed land. The lease could be granted after the vesting of land in Government under paragraph 13, part (iv) of the MLR‑

115. It would be beneficial to reproduce paragraphs 13, part (iv) and 21, part (v):

13. Vesting in Government of excess land.‑‑‑(1) Land in excess of the area permissible for retention under Part III shall vest absolutely in Government free from any encumbrance or charge and without payment of any compensation. (2) Any encumbrance or charge existing on land surrendered by a person, which vests in Government under sub‑paragraph (1) shall be deemed to have been transferred to the land retained by such person under Part III.

21. Utilization of land resumed from religious, charitable and educational societies. Land resumed under the provisions of paragraph 17 shall be utilized in such manner as may be prescribed: Provided that if in the public interest Government decides to lease out any such land, the person from whom it is resumed shall have the right of first option to the grant of the lease.

13. After a look at the paragraph 13 there remains no doubt in mind that the grant of land to tenants was not the requirement for vesting the land in Government. For academic view point it can be made clear that it is paragraph 18, part (v) which provides for the grant of land to tenants whereas utilization of lands resumed from religious, charitable and educational societies is provided in paragraph

21. The land in question belonged to Anjuman a religious/charitable society, therefore, was leased out to it. Thus the land in question vested in Government before grant of its lease to the Anjuman and, as such, the fact that the paragraphs of MLR 115 ceased to have effect from 23‑3‑1990 does not affect its resumption in any way. The resumption was final and a closed transaction for all purposes.

14. The result of above discussion is that the land in questions had become Government property under MLR‑115 and the Anjuman had no title over it. The IInd Senior Civil Judge, Umerkot, had decreed the suit of Anjuman (F.C.S. No. 156 of 1998) in flagrant disregard of law. By passing such a perverse judgment and decree he transgressed his legal limits. They (judgment and decree) being without jurisdiction and void can be and must be set aside exercising the jurisdiction in this revision. Also an ordinary bar of limitation, if any, cannot prevent the exercise of jurisdiction in the cases like present one. How wide the scope of the revisional powers of this Court is, the valuable opinion was delivered by the Honourable apex Court in the cases

1. Shaikh Muhammad v. Mst. Hashmat Sultana (1989 SCMR 34),

2. Manager, Jammu and Kashmir State Property in Pakistan v. Khudayar and others (PLD 1975 SC 678).

15. Consequently the judgment of Appellate Court and the judgment and decree passed by the trial Court are set aside and Anjuman's suit i.e. F.C. Suit No. 156 of 1998 is dismissed. Anjuman to bear the costs throughout. With this order the revision application is disposed of. H.B.T./T‑41/K Order accordingly.