P L D 1983 Quetta 100 (PLP)

The petitioner had filed a suit for declaration and permanent injunction in the Court of the Deputy Commissioner, Kachhi. The Deputy Commissioner called upon the respondent/defendant No. 1 to file written statement. The defendant/respondent No. 1 had raised certain preliminary objection in the written statement regarding maintainability of the suit under section 42 of the Specific Relief Act and jurisdiction of the Deputy Commissioner as the Court of first instance. The petitioner in the meanwhile filed an application for return of the plaint, for presentantion to a Court of competent jurisdiction on 17-12-1981. he Deputy Commissioner dismissed the suit of the petitioner holding it to be incompetent on account of the objection raised by respondent/defendant No. 1, hence this petition. The counsel of the petitioner urged that the Deputy Commissioner should have retruned the plaint for presentation to the proper Court if he was of opinion that the suit should have been filed before the Naib-Tehsildar and that .the Deputy Commissioner had no jurisdiction to dismiss the suit on account of preliminary objection regarding the bar of section 42 of the Specific Relief Act. The counsel of the respondent urged that the suit of the petitioner did not reveal any cause of action and it was not necessary for the Deputy Commissioner to send the case for trial to the Qazi or to get it tried by the Jirga according to section 11 of the Dastoor-ul-Amal Diwani. The counsel of the petitioner contended that the Hakim-e-Adalat, that is the Deputy Commissioner or any other functionary under Dastoor-ul-Amal Diwani under that hierarchy had to proceed with the case according to the provisions of section 7 and section 11 of the Dastoor-ul-Amal Diwani and had no powers to dismiss the suit. The counsel of the petitioner relied upon the case of Mirza Khan v. Ch. Mohan Das (1982 C L C 2258) in which the relevant observations are given in paragraph 8 of the judgment. In that case it .was held :- "A suit where parties are Hindus could be referred to a Jirga which consisted of equal number of Hindus as members. There is no other provisions in the Zobita Amal Diwani where any distinction has been made in the procedure or the jurisdiction of the Court of Hasim or the Kazi in trial of suits of Hindus. Even if the parties are Hindus and in the opinion of the Hakim the matter is not such that should be decided by reference to a Jirga, the procedure prescribed for trial of suits by Kazi for Muslims would apply. A suit where parties are Hindus would also be tried under section 7 of the Zabita-e-Amal Diwani and there is no separate procedure prescribed." to the present case- the Deputy Commissioner had called for the written statement. It was incumbent upon him to frame issues and refer the matter to the Qazi to be decided according to law. If the Deputy Commissioner had been of opinion that the matter was such as was to be decided by the Jirg or Panchayat he should have proceeded under section 11 of the Dastoor-ul Amal Diwani, Kalat. In case of Mirza Khan v. Ch. Mohan Das it was observed that as long as the Deputy Commissioner did not consider it expedient to get the case decided by the Jirga or Panchayat the ordinary forum would be that of the Qazi. There is no provision under Dastoor-ul Amal Diwani, Kalat whereby the Deputy Commissioner can himself assume the jurisdiction of the Qazi or the arbitrator or the Jirga or the Panchayat. The function assigned to the Deputy Commissioner is to entertain the suit and call for the written statement under section 7 of the Dastoor-ul-Amal Diwani. It is not the discretion of the Deputy Commissioner to call for the written statement but it is obligatory. When the written statement is filed the Deputy Commissioner has to frame issues as provided under section 7 of the Dastoor-ul-Amal Diwani or to proceed according to section 11 of the said Dastoor-ul-Amal Dewani. The counsel of the respondent urged that since the plaint did not reveal a lawful cause of action for which the civil suit could be filed the Deputy Commissioner could dismiss the suit. Whatever might have been the merits of the case, the Deputy Commissioner has no power to dismiss the suit after .he had called for the written statement. It is necessary for him to frame issues and refer the case to the Qazi for decision on such issues and disposal of the case. If it is found that the plaint does not disclose any lawful cause of action, the Qazi can reject the plaint but the Deputy Commissioner possesses no such powers. The defendant/respondent had raised preliminary objection in the written statement that the suit should have been filed before the Naib-Tehsildar as the valuation of suit, was Rs.

400. In this behalf section 20 of the Dastoor-ul-Amal Diwani is relevant, according to which the suit valuation of which is up to Rs. 1,00,000 has to be filed before the Naib-Tehsildar. Since the suit was filed in the Court of the Deputy Commissioner be should have been returned the plaint for presentation to the Naib-Tehsilder. Section 20 specifically lays down that the Deputy. Commissioner shall have jurisdiction in suits valuation of which is more than Rs. 10,

000. For this reason also the order of the Deputy Commissioner was without jurisdiction. The Deputy Commissioner should have returned the plaint to the plaintiff/petitioner for presentation to a competent Court instead of dismissing -the suit. The order of the Deputy Commissioner is therefore struck down as void and the case is sent back to the Deputy Commissioner who will return the plaint to the petitioner. The petition is allowed with no orders as to costs. S. Q. Appeal allowed.