1985 PLP 1196 (SCMR)

SHAFIUR RAHMAN, J.-- The petitioners who have been unsuccessful as defendants seek leave to appeal against the judgment of the Lahore High Court, dated 3-4-1979 whereby the Letters Patent Appeal filed by them, was dismissed. The plaintiff-respondents first approached the revenue Court seeking the eviction of the petitioners on the ground that they were not paying them rent. The petitioners resisted the claim on the ground that they themselves were the owners and not the plaintiff-respondents. Thereupon the plaintiff-respondents withdrew their claim from revenue Court and instituted a civil suit on the basis of their title and its denial by the petitioners. The petitioners then took up the plea that the suit was barred under section 77(3) proviso 1 of the Punjab Tenancy Act and that the matter should be sent to the revenue Court. The trial Court considered all the objections and ultimately decreed the suit for possession. An appeal was taken to the District Judge who allowed it on the preliminary objection of the petitioners with regard to the jurisdiction of the civil Court and returned the plaint for presentation to the Collector under section 77(3) proviso 1 of the Punjab Tenancy Act. The plaintiff-respondents thereupon came up in second appeal before the High Court which was allowed and the case was remanded to the District Judge for disposal on merits. This order has been maintained by the letters Patent Bench. The learned counsel for the petitioners in order to sustain his claim that the matter must go to the revenue Court has prefaced his submissions by asserting that pleas taken in defence by the petitioners in the revenue Court were ill-advised, mistaken and untenable. It is not his case that if the pleas as were taken there are allowed to stand they did not make the suit competent but that if they had not been taken then a civil suit would not have been competent. In the alternative he contended that the pleas taken in the civil Court made the civil suit incompetent. The basic law with regard to the initial assumption of jurisdiction has remained the same throughout the ages. It is that the averments in the plaint determine it till it is substituted by a finding" of the Court. In the present case, not only the averments made in the plaint but the antecedent conduct of the defendants also fully justified institution of the proceedings in the civil Court. The plea taken in defence was not only in contradiction of the earlier plea raised by the same party but not sufficient by itself to divert the jurisdiction arising) out of the averments in the plaint. In the circumstances, we find that the two judgments of the High Court on the subject fully examined the issue and there is no such question of law which may require further examination in this Court. The petitioners' conduct itself would not entitle them to any discretionary relief apart from that they have no case on merits. Leave to appeal is, therefore, refused. M.I. Leave refused.