2013 PLP 1942 (YLR)

SHAH JEHAN KHAN AKHUNDZADA, J.

Through the instant writ petition, the petitioners have challenged the legality and propriety of the judgment and decree dated 2-6-2011 passed by the learned Additional District Judge-II D.I. Khan, whereby their revision petition against the order dated 23-11-2010 passed by the learned Civil Judge-IV D.I.Khan was dismissed.

2. Essential facts of the case are that the petitioners filed a suit against the respondents for declaration to the effect that they being old lessees of the property fully described in the plaint are entitled to retain the same and that Mutation No.1171 dated 30-8-2005 is void ab initio, being without notice, without information and without affording to them an opportunity of hearing, ineffective upon their rights and thus liable to be set aside. They also sought allotment in view of the notification dated 3-9-1979 and permanent injunction to the extent that the respondents should not interfere in their possession or to alienate the suit property in any manner. Only respondent No.8 contested the suit who filed written statement, while the others were placed ex parte. Subsequently, respondent No.8 filed an application for rejection of the suit and return of the plaint under Order VII, Rule 10, C.P.C., to which the petitioners filed written reply. However, the learned trial Judge accepted the application and returned the plaint to the plaintiffs/petitioners under Order VII, Rule 10, C.P.C, vide order dated 23-11-2010. Being aggrieved from it, the petitioners challenged the said order through a revision petition, but could not succeed, as it was dismissed by the learned Additional District Judge-II D.I.Khan vide judgment and decree dated 2-6-2011. Hence this writ petition.

3. Learned counsel for the petitioner vehemently argued that the impugned judgments and decrees of both the courts below are patently illegal being based on mis-reading/non-reading of evidence and thus are liable to be set aside. He contended that both the courts below have acted in haste because the lis was required to have been decided on merits after recording and pro evidence of the parties. He submitted that the valuable and vested rights of the petitioners have been unlawfully ignored by both the courts below while delivering the impugned findings which are nullity in the eyes of law and thus not sustainable in the eye of law.

4. On the other hand, the learned Deputy Advocate General for State assisted by the learned counsel for respondent No.8 defended the impugned judgment and decree on the grounds mentioned therein. 4A. After hearing and considering the arguments of the learned counsel for the parties, we have come to the irresistible conclusion that learned counsel for the petitioners has failed to make out a case for interference. Record shows that the plaint was returned to the petitioners for want of jurisdiction under section 36 of the Colonization of Government Lands Act, 1912. When the revenue hierarchy had not exercised their power in excess of their jurisdiction, the Civil Court has no power to assume jurisdiction. Section 7 of the Act ibid provides that the Land Revenue Act, 1967 applies to the proceedings taken thereunder. It manifestly envisages that the orders passed by the Collector are to be challenged before the Commissioner through an appeal or before the Board of Revenue through a revision petition and not amenable to the jurisdiction of the civil courts. The remedies provided by the Statute is required to be exhausted first and thus both the courts below have acted in a proper manner and in accordance with law to which no exception can be taken by this Court.

5. Learned counsel for the petitioners could not point out any illegality, mis-reading/non-reading of evidence or perversity in the impugned judgments and decrees so as to call for interference by this Court in exercise of its extra ordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which are accordingly upheld.

6. As a result, we find no merit in this writ petition which is hereby dismissed in limine. HBT/190/P Petition dismissed.