2020 PLP 792 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The appellant approached the Civil Court seeking declaration that being assignee of the original lessee was sub-tenant, who could not be termed as illicit possessee and was entitled to have purchased State land under his occupation after attestation of sale deed as per Government policy vide notification dated 01.11.2002. The suit was also accompanied by application for grant of temporary injunction, but ad interim injunction was refused by the said Court, compelling the appellant to approach learned District Court, which while dismissing the appeal also rejected his plaint, hence this appeal.

2. Inessential detail apart, it is the case of the appellant that initially State land measuring 400-kanals comprising square No.15 killa Nos.1 to 25 and square No.16 killa Nos. 1 to 25 under Bara Temporary Scheme had been allotted to one Zulfiqar Ali son of Humayun on 11.12.1961. Thereafter its tenancy rights were equally shared by said Zulfiqar Ali and his brother Mapal. As per terms and conditions of the scheme, subsequently out of said area, half of it in equal share was transferred to both the said brothers vide registered instrument dated 13.07.1980. After death of Mapal, one of the allottees/transferees, the father of the appellant vide mutation No.556 dated 29.01.2005, purchased 100-kanals unspecified area out of 400-kanals, who also occupied remaining part of the subject lot, as such to that extent he was recorded as illicit cultivator in the revenue record. After demise of his father, the appellant substituted him in such capacity, who firstly preferred applications to the District Collector for the transfer of rest of untransferred area to him besides he be recorded as sub-tenant in the relevant record, but without waiting for its result, he instituted suit in hand. The perusal of its plaint indicates that in substance the appellant sought for the determination of his entitlement to allot/transfer of remaining unallotted area of 200-kanals of the basic lot through the Civil Court. There is no gainsaying that originally it is the job of the authorities functioning under the Colonization of Government Lands Act,1912 to determine the merits or otherwise of entitlement of contender for grant of lease or conferment of proprietary rights of the State land. I am in agreement with Mr. Munawar-ul-Islam, Advocate to the effect that Tribunals of restricted jurisdiction cannot be judges of the fact and if order passed by them is without jurisdiction, the appellant will have to approach the Court of ultimate jurisdiction for scrutiny of such order, but if the practice of bypassing the special Tribunals constituted under special laws is allowed, then the basic aim for what the law was promulgated and rules were framed will become superfluous. For such intent and object, this Court is fortified by the dictum laid down in "Mian Sultan Ali Nanghiana v. Mian Nujr Hussain" (PLD 1949 Lah. 301), wherein it was held that a special tribunal has been constituted under the Statute to decide the grouses of the aspirants, its jurisdiction to determine the question touching such rights shall be exclusive and the Civil Court would not be its substitute. The only reason specified in the plaint by the appellant to directly approach Civil Court is that applications so made before the appropriate authority were not attended to can hardly be categorized as a legitimate reason to allow him to directly invoke jurisdiction of the Civil Court to seek relief for which his grouse is still sub judice before the competent authority. The basic rule is firstly to exhaust all the remedies provided by Statute within the same hierarchy. In cases reported as "Sultan Ali Nanghiana v. Nur Hussain" (AIR (36) 1949 Lahore 131), "Central Government through the Income Tax Officer, Dera Ismail Khan v. Sher Muhammad Khan and others" (PLD 1971 Peshawar 153) and "Abdul Aziz v. Syed Arif Ali and 6 others" (PLD 1978 Lahore 441), brought without first exhausting remedies at various tiers of the special hierarchy were held incompetent. Thus without having recourse thereto at first instance, the suit was barred and its continuation would otherwise amount to encourage availing of various remedies through collateral proceedings simultaneously, which again will be violative to the doctrine of election/selection, authoritatively elaborated by the apex Court in recent judgment reported as "Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others" (PLD 2018 SC 828). In such panorama, better course for the appellant was to wait for the decision of the forum originally set up to deal with such grouses and after culmination of all the remedies provided under the Act before the same hierarchy, the jurisdiction of the Civil Court could definitely be invoked, if it was shown that the orders passed by the concerned authorities were excess or abuse of its jurisdiction. This Court is cognizant of the fact that most of the institutions/forums/authorities are not performing vigilantly and matters of the litigants at that level are pending since long for its final adjudication, but for this sole attitude, the litigants cannot be allowed to approach the Civil Court while leaving their unattended matters to the said authorities. The Courts have been involved in most of the affairs likely to be decided by the others for slackness on their part and if such practice is allowed any more, then not only the workload on our side will multiply, rather the basic object of the promulgation of special laws and constitution of Tribunals in this behalf will also lose its importance. In such situation, this Court must appreciate that learned Additional District Judge took a correct view in rejecting the plaint at its inception.

3. Mr. Munawar-ul-Islam, Advocate while referring plethora of judgments of the superior Courts emphasized with great vehemence that lower Appellate Court erred in law to reject the plaint when neither was it seized of the suit nor plaint was before it. Suffice it to say that Order VII, rule 11 of the Code, 1908 confers wide powers on the Court to reject the plaint at any stage of its proceedings. Indeed, if on examination of the plaint, the Court comes to the conclusion that suit is barred by some provisions of law or it does not disclose cause of action, then it is not only proper, rather statutory duty of the Court to reject the plaint and definitely there are reasons for it; firstly that a still born suit should be buried in its inception so that no further time is wasted on fruitless litigation and secondly that rejection of plaint of the suit would give the plaintiff a chance to retrace his steps at the earliest possible moment. There is no cavil to the proposition that the Court is even empowered to reject the plaint suo motu without there being an application filed by the defendant so that incompetent suit shall be taken off the file. It is again well established that Appellate Court is vested with all the powers conferred upon Trial Court and appeal otherwise is continuation of original proceedings. I am fortified by the dicta laid down by the Hon'ble Supreme Court in "Muhammad Ali v. Province of Punjab and others" (2005 SCMR 1302) wherein while covering identical situation in the similar facts and circumstances involved herein, the rejection of the plaint by the lower Appellate Court in appeal against interlocutory order with regard to stay matter was declared to be genteel and correct approach.

4. The next grouse agitated by the learned counsel that his client was not an encroacher, rather he was sub-tenant and at least to the extent of his second prayer for correction of revenue record, as per section 53 of the Land Revenue Act, 1967, the suit was perfect and plaint could not be rejected in parts is not well founded. During the course of arguments, learned counsel at his choice also presented copy of application dated 14.04.2006 addressed to District Officer (Revenue) seeking correction of entry of his status as cultivator in the revenue record, which is alleged to be still sub judice before the same authority, so once again, he admitted that his client had already approached the right forum for redressal of his grievance. Moreover, the moment, Mr. Munawar-ul-Islam produced copy of Challan, whereby amount of Rs.339375/- stood already deposited by the appellant against illicit cultivation, in fact, the existing status as recorded in the relevant record deemed to be admitted by him without any ambiguity and his emphasis that it was deposited under protest is not supported by the contents of said Challan.

5. The outcome of the discussion is that Statute provided proper procedure for resolution of grouse of the petitioner, who rightly set it into motion before the proper forum and leaving it unattended, the approach to the learned Civil Court was unwarranted, whereas it would be the last resort. In the given circumstances and for the reasons discussed hereinabove, the impugned order does not require any interference, which is approved by dismissing this appeal in limine. MH/A-100/L Appeal dismissed.