1984 PLP 511 (CLC)

(a) West Pakistan Land Revenue Act (XV1l of 1967)‑ ‑‑‑ S. 172 ‑ Agricultural Development Bank Ordinance (IV of 1961), ‑S. 25‑Civil Procedure Code (V of 1908), S. 9 Jurisdiction of Civil Courts ‑ Section 172 (2) of Land Revenue Act, 1967, held, not wide enough to cover all matters relating to recovery of land revenue or any sum recoverable as land revenue -S. 172 (2) can be invoked when any collection is made by Govern ment or any process for recovery of land revenue or sum recoverable as arrears of land revenue is enforced by Government‑Person making claim relating to or connected with such collection, recovery or process, or challenges same, jurisdiction of Court to entertain such action, held, barred.‑[Jurisdiction]. Din Muhammad and 6 others v. Munir Ali Khan and 2 others P L D 1978 Kar. 267 ref. Ahmad Shafi Sheikh v. Municipal Committee, Rawalpindi P L D 1971 Lah. 206 ref. (b) West Pakistan Land Revenue Act (XVII of 1967)‑ ‑‑S. 9l‑Agricultural Development Bank Ordinance (IV of 1961), S. 25‑Provision of S. 91‑West Pakistan Land Revenue Act, held, can be pressed into service where proceedings have been taken for recovery of arrears‑ Where no proceedings have been taken under Act, S. 91 not applicable‑‑Appellant not alleging that Government mak ing any collection or enforcing any process for recovery of any sum recoverble as arrears of land revenue and no allegation made by him that proceeding under Act taken against him‑Plaint, held, not hit by S. 91 and S. 172 (2), West Pakistan Land Revenue Act, 1967. Noor Muhammad v. Province of West Pakistan P L D 1966 B J 19 Muhammad Mureed v. Government of Punjab and 2 others 1979 C L C 151 and Muhammad Latif v. Province of West Pakistan P L D 1970 S C 180 ref. (c) West Pakistan Land Revenue Act (XVII of 1967)‑ ‑‑‑ S. 172‑Agricultural Development Bank Ordinance (IV of 1961), S. 25‑Civil Procedure Code (V of 1908), S. 9 Jurisdiction of Civil Court ‑ Not barred in all cases under S. 172, West Pakistan Land Revenue Act, 1967‑Any action taken under Statute if based on fraud, that loses its validity and sanctity and Civil Court in appropriate cases will have jurisdiction to scruti nise such action‑Government not taking any action against appellant on basis of averment made by him in his plaint‑Section 172 (2) (xv) not attracted and trial Court, held, not justified in holding that appel lant's suit was not competent‑Order of trial Court set aside. [Jurisdiction). The appellant filed a suit for declaration and permanent injunction seeking the following relief (a) For the declaration that the power of attorney alleged to have been executed by the plaintiff' in favour of Defendant No. 1 and produced by the defendant No. 1 before the defendant No. 2 for obtaining loan against the suit land is forged, fictitious and not binding upon the plaintiff and that the plaintiff is not bound by the mortgage deed executed by defendant No. 1 in respect of suit land in favour of Defendant No. 2 and as such is not liable to pay loan of Rs. 29,840 (Rupees twenty‑nine thousand eight hundred forty only) obtained by defendant No. 1 from Agricultural Development Bank. of Pakistan, Shahdadpur on the basis of the said power of attorney. (b) For permanent injunction against the defendant No. 2 not to claim any right title or interest in the suit land. (c) Cost of this suit be borne by the defendant jointly and seve rally. Briefly the facts are that the appellant is the owner of land measuring 131.13 acres situated in Deh Jamman Taluka Shahdadpur bearing survey numbers 638/1, 2, 639/1, 2 2‑A, 64011,2, 641/1, 2. 642/1, 3, 648/1, 3, 649/4, 650/1, 3, 4, 625/1, 2: 653/1, 2, 654/1, 2, 686/3, 687/1, 4, 688/3, 700/4, 702/3, 670/4, 693, 657/1 to 4, 658/2, 661/3. The appellant being an old man of about 80 years and blind has been managing his property through Noor‑us Samad his son and attorney. On 4th June, 1968 the lessees of the appellant informed him that some officials of respondent No. 2 the Agricultural Development Bank of Pakistan had visited the appellant's land and infor med them that the respondent No. 1 had obtained a loan of Rs. 29,840 against the security of the appellant's land on the basis of a special power of attorney allegedly executed in his favour by the appellant. As the loan has not been repaid, the respondent No. 2 would auction the land for its recovery. The appellant's son who is his attorney proceeded to Shahdadpur to enquire about the power of attorney and the mortgage deed, but the Registrar declined to supply any information or their copy and asked him to contact respondent No.

2. The appellant has alleged that on account of blindness and old age he had never gone to Shahdadpur and never executed any power of attorney in favour of respondent No. 1 or any one else for obtaining the loan. The appellant had authorised his son Noor us‑Samad to manage his land and therefore, power of attorney produced by the respondent No. I or any other person is forged and fictitious and the appellant is not bound by the alleged mortgage. The respondent No. 1 did not appear but respondent No. 2 filed an application under Order VII, rule 11, , C.P.C. for rejection of the plaint on the ground that the suit is barred under the provisions of West Pakistan Land Revenue Act, 196? read with section 25 of Agricultural Development Bank of Pakistan Ordi nance, 1961 and Sind Revenue Court Jurisdiction Act, 1911. It was also stated that no cause of action has been shown in the plaint and that the Court has no jurisdiction to entertain the suit. The learned Additional District Judge by his impugned order held that the suit is barred under the provision of section 172 of the West Pakistan Land Revenue Act, 1967 . For purposes of rejection of plaint under .Order VII, rule 11, C. P. C. on the ground that it is barred by any law, the Court has to examine the averments made in the plaint and no inquiry is needed. While exercising the power under Order VII, rule I1 (d), C. P. C. the Court while first assume the averments made in the plaint to be correct and then examine whether it is barred by any law. At this stage the factual defence raised by the defendants are not to be taken into consideration. Now it has to be seen whether in view of the facts stated in the plaint it is barred under section 172 of the West Pakistan Land Revenue Act, 1967. Mr. Muhammad Ali Shaikh the learned counsel for the appellant has contended that the learned trial Court has not taken into consideration the relief sought in the plaint. The first prayer contains the relief to declare the power of attorney as forged, false and fictitious and that the appellant is not bound by the mortgage Deed. It further contains a prayer that as a consequence of the said declaration it may also be declared that the appellant is not liable to pay Rs. 29,840 to the respondent No.

2. The learned counsel for the appellant has referred to Din Muhammad and 6 others v. Munir Ali Khan and 2 others (P L D 1978 Kar. 267) where it was held that "the prayer clause could not be read in isolation and divorced from the case set up by the plaintiff/appellant in the plaint", and that "the conclusion that a suit is barred by any law must be based on the statement in the plaint'". The res pondent No. 2 have relied on section 172 (2) (xv) which is _reproduced hereunder "172 (1) ... ... ... .. (2) Without prejudice to the generality of the provisions of subsection (1) a Civil Court shall not exercise jurisdiction over any of the following matters, namely : ‑ (xv) any claim connected with or arising out of the collection by Government, or the enforcement by Government of any process for the recovery of land revenue or any sum recoverable as an arrear of land revenue." By this provision the jurisdiction of the Civil Court is barred where the claim relates to, or arises out of the collection by Government or enforce ment of Government of any process for recovery of land revenue or any sum recoverable as arrears of land revenue. Section 172 (2) (xv) is not wide enough to cover all matters relating to recovery of land revenue or any sum recoverable as land revenue: It can be invoked when any collection is made by Government or any process for ex‑recovery of land revenue or sum recoverable as arrears of land revenue is enforced by the Government. If any one makes any claim relating to or connected with such collection, recovery or process, or challenges the same, then the juris diction of the Court to entertain such action will be barred. In this regard reference may be made to Ahmad Shafi Sheikh v. Municipal Committee, Rawalpindi (P L D 1971 Lah. 206), where considering section 158 (2) (xiv) of Punjab Land Revenue Act, 1887 which is identical to section 172(2) (xv) of West Pakistan Land Revenue Act, 1967, following observation was made : "A careful perusal of the above shows that it applies when the collection or recovery is being made by the Government. In the instant case, it is a common ground that the process were issued by an official of the Municipal Committee and surely he is not and cannot be called the Government. Learned counsel argued that generally it is the Collector under the 1 and Revenue Act who proceeds to make reco veries and issue process. Even then he too cannot be held to be the Government. The clause of subsection (2) of section 158, herein before quoted, therefore, does not support the learned counsel for the defendant‑respondent, vis‑a‑vis the ouster of the jurisdiction of the Civil Court in the instant case." This observation equally applies to the present case. Mr. Khatri has also referred to section 91 of the West Pakistan Land Revenue Act, 1967 which is reproduced hereunder and contended that a specific remedy has been provided under the Act and the appellant's suit was not maintainable "

91. Remedies open to person denying his liability for an arrear.‑(1) Notwithstanding anything in section 79, when proceedings are taken under this Act for the recovery of an arrear, the person against whom the proceedings are taken may, if he denies his liability for the arrears or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent institute a suit in a Civil Court for the recovery of the amount so paid. (2) A suit under subsection (1) must be instituted in a Court having jurisdiction in the place where the office of the Collector of the District in which the arrear or some part thereof accrued is situate." A bare reading of this section makes it clear that where any person denies his liability to pay arrears or any part thereof and proceedings have been taken to recover the arrears under the Act, such person should first deposit under protest the arrears and then file suit for its recovery. The provision can be pressed in service where proceedings have been take for recovery of arrears but where no proceedings have been taken under the West Pakistan Land Revenue Act it can hardly be applied. Reliance can be placed on Ahmed Shafe Sheikh's case where referring to section 78 o Punjab Land Revenue Act which is similar to section 91 of West Pakistan Land Revenue Act. it was observed that the section applies to person against whom the proceedings are taken under the Act. In these premises section 91 can be invoked where proceedings under West Pakistan Land Revenue Act have been taken for recovery of arrears. In the present case it has not been alleged that Government is making any collection or enforcing any process for recovery of any sum recoverable as arrears of Land Revenue. There is no allegation in the plaint that any proceeding under the Act has been taken against the appellant. The plaint, therefore, could not be hit by sections 91 and 172 (2)(xv) of the West Pakistan Land Revenue Act. . Mr. Khatri has relied upon Noor Muhammad v Province of West Pakistan (P L D 1966 B J 19). It is distinguishable on facts as the Provincial Government had taken steps for recovery of dues as arrears of Land Revenue. Reliance was also placed on Muhammad Mureed v. Government of Punjab and 2 others (1979 C L C 151). In this case suit was filed against the Provincial Government restraining it from recovering the dues which the plaintiff had collected as Land Revenue for depositing in the Government Treasury. From the evidence it was established that the Revenue Officer had set the machinery for recovery in motion by issuing three notices. In these circumstances, it was held that "the suit in the form presented" was not maintainable and was hit by section

172. The facts in the present case as pointed out earlier are completely different and distinguishable. This judgment is of no assistance to the respondents. A further consideration which escaped the notice of the learned trial Court is that the plaint contains several relief s. One of the prayers is for declaration that the power of attorney is a forged document. The appellant has challenged the power of attorney as a forged and fictitious document on the basis of which the alleged mortgage was executed and loan was advanced. It has been alleged that on the basis of these documents, defendant No. 2 are taking action for recovery of the alleged loan. The plaintiff has alleged that the contemplated action of the respondent No. 2 is, therefore illegal and incompetent in law and they have no jurisdiction to recover the amount claimed. by them. In Muhammad Latif v. Province of West Pakistan (1) the Ijara Tax due against the appellant was certified to be recoverable as land revenue and Mukhtiarkar issued notice under Land Revenue Code and put appellant's property to auction. The appellant filed suit challenging action and prayed for declaration that the action is illegal, and inoperative and for permanent injunction restraining the respondents from recovering the amount in dispute. The respondent pleaded that the jurisdiction of the Civil Court was barred under section 11 of the Sind Revenue Jurisdiction Act, 1876. The Hon'ble Supreme Court made the following observation :‑ "There is no doubt that under it ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the Civil Court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eyes of law. There is ample authority that in such cases the jurisdic tion of the Civil Court is not barred. This aspect of the question was considered by the Privy Council in the case of Secretary of State v. Mask & Co. (P L D 1970 S C 180). It was held in that case It is also well‑settled that even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine into cases where provisions Act have not been complied with or the statutory tribunal has not acted in. conformity with the fundamental principles of judicial procedure." It is not in all cases that the jurisdiction of the civil Court is barred under section

172. It is well-settled that if any action taken under Statute, is based on fraud it loses its validity and sanctity. The civil Court in appropriate cases will have the jurisdiction to scrutinize such action. In the present case on the basis of averments made in the plaint section 172 (2) (x v) will not be attracted. Section 11 of Sind Land Revenue Act will not be a bar as admittedly Government or the Revenue Officer have not taken any action against the appellant. In these circumstances the learned trial Court was not justified in holding that the appellant's suit was not competent. I, therefore, set aside the impugned order dated 17th December, 1969 passed by the learned trial Court. Mr. Muhammad Ali Shaikh the learned counsel for the appellant has stated that the appellant is agreeable if the security furnished by him in this Court is continued till the final disposal of the suit. I allow the appeal and further order that the security furnished by the appellant shall continue till the suit finally decided. The trial Court should dispose of the suit within the earliest possible time. M. Y. H. Appeal allowed.