2014 PLP 2185 (YLR)

MAHMOOD AHMAD BHATTI, J.

Through this petition, the petitioners have assailed the judgment dated 6-5-2013, whereby by allowing a revision petition of the respondents/defendants, the petitioners/ plaintiffs' plaint in a suit for declaration was rejected under Order VII, Rule 11, C.P.C.

2. Succinctly put, the facts are that the petitioners instituted a suit for declaration, contending therein that the orders of the Consolidation Authorities in general and the order of learned Member, Board of Revenue dated 9-6-2011 as also the order dated 14-2-2012 passed by him on the review petition seeking to review the aforementioned order dated 9-6-2011 in particular were illegal, unlawful, without lawful authority, without jurisdiction and as such ineffective upon the rights of the petitioners regarding the suit-land measuring 15 Kanals, 17 Marlas, situated in Mauza Bubi, Tehsil Taunsa Sharif, District Dera Ghazi Khan.

3. The private respondents/defendants filed written statement and controverted the pleas of the petitioners/plaintiffs. They questioned the jurisdiction of the Court to adjudicate upon a dispute, which stood concluded by the Consolidation Authorities under the Consolidation of Holdings Ordinance, 1960. At the same time, they moved an independent application under Order VII Rule 11 C.P.C. seeking to reject the plaint.

4. After listening to the arguments advanced by the learned counsel for the parties, learned Civil Judge, Taunsa Sharif, seized with the suit dismissed the application of the respondents/defendants vide order dated 10-4-2012 and decided to proceed with the suit. This order was assailed by filing a revision petition before an Additional District Judge, Taunsa Sharif. As it is, he disagreed with the view taken by the learned trial Court and rejected the plaint of the present petitioners vide judgment dated 6-5-2013.

5. As stated above, the aforesaid order dated 6-5-2013 passed by the learned Additional District Judge, Taunsa Sharif, District D.G. Khan has been brought under challenge through the instant writ petition.

6. Learned counsel for the petitioners contends that it was wrongly held by the revisional Court that the Civil Court lacks jurisdiction to entertain a suit in which the actions of the consolidation authorities are challenged. He has placed reliance on the judgments reported as "Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi" (PLD 1965 SC 698), "Hamid Husain v. Government of West Pakistan and others" (1974 SCMR 356), "Usman Punjwani and another v. Government of Sindh and another' (1996 CLC 311), "Zaheer Ahmad and 6 others v. Allah Ditta and 15 others" (PLD 1983 Lahore 256) to urge that Civil Courts being Courts of ultimate jurisdiction are vested with the jurisdiction to examine acts of Special Tribunals and to determine whether their actions are in accordance with law or are tainted with mala fides. He elaborates that the petitioner had alleged fraud in the plaint and such question can only be gone into by a Civil Court. He further argues that the Civil Courts ought to expand and extend their jurisdiction instead of abdicating the same.

7. Learned counsel for respondents Nos.3 to 7 has vehemently controverted the arguments advanced by the learned counsel for the petitioners. It goes without saying that he supported the impugned judgment. He has pointed out that consolidation proceedings were carried out in Village Bubi in the year 1962, and the stance of the petitioners was rejected by all the Consolidation Authorities up to the Board of Revenue. He adds that under section 26 of West Pakistan Consolidation of Holdings Ordinance, 1960 the jurisdiction of Civil Courts has been specifically ousted.

8. I have heard the learned counsel for the parties at length, besides going through the documents appended to the writ petition.

9. There is no cavil at the proposition of law that Civil Courts are Courts of ultimate and plenary jurisdiction, and in a series of judgments handed down by the superior Courts, it has been held that they have jurisdiction to see whether a particular authority or Tribunal set up under a special Statute has exceeded or overstepped its authority or whether its actions are ultra vires the Statute in question under which the Tribunal or Authority concerned purportedly passed the order impugned before the Civil Courts. Again, it is well-established law that where allegations have been that a particular order was obtained by fraud and misrepresentation, not only the concerned Authority or Tribunal has inherent jurisdiction to recall or set it aside, but the Civil Courts would also step in to undo the fraud and right the wrong. But the question arises whether the Civil Courts would also be competent to assume jurisdiction where special forums have been established by the law, which deal with specialized subjects, and where the Civil Courts have little, if any, exposure and experience. Section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960 specifically ousts the jurisdiction of Civil Courts. It would be advantageous to reproduce the same hereunder:-- Jurisdiction of Civil Court barred as regards matters arising under this Ordinance "No Civil Court shall entertain any suit or application to obtain a decision or order in respect of any matter which Government or the Board of Revenue or any officer is, by this Ordinance, empowered to determine, decide or dispose of."

10. The afore-quoted section of the West Pakistan Consolidation of Holdings Ordinance, 1960 has repeatedly attracted the attention of the superior Courts. The consensus seems to be that unless the case of a person falls within the narrow confines of mala fide, fraud or misrepresentation, the Civil Courts shall not assume jurisdiction. Reference can also be made to the case of "Mst. Roshan Bibi v. Member, Board of revenue (Consolidation), Lahore and 2 others" (1994 MLD 1513), the relevant portion therefrom is reproduced hereunder:-- "Jurisdiction of the civil Court appeared to be expressly barred in section 26 of West Pakistan Consolidation of Holdings Ordinance, 1960. Adjustment of lands and their distribution in consolidation operations fell within the exclusive jurisdiction of the Consolidation Authorities and, in my view, civil Court could not sit in appeal on them. By the very nature of the task, their judgments were to be respected subject to remedies for their correction in the mode and manner provided in the Law of Consolidation of Holdings. Even if not expressly ousted, the jurisdiction of the Civil Court was barred impliedly." To the same effect is the judgment reported as "Sanjha and another v. Elahi Bakhsh" (2006 YLR 1931 (Lahore). Head note of this judgment is reproduced for the sake of brevity:-- "

S.26

Specific Relief Act (I of 1877), S.42

Consolidation of land

Bar of jurisdiction of Civil Court

Section 26 of West Pakistan Consolidation of Holdings Ordinance, 1960 clearly bars the jurisdiction of Civil Court to entertain any suit or even application in respect of any matter, which Government or Board of Revenue or any Officer by this Ordinance was empowered to determine and decide

Case of plaintiff was that during consolida-tion proceedings consolidation staff had illegally reduced his land by three marlas and handed over the same to defendant

Such a matter undoubtedly fell exclusively within the jurisdiction of Revenue Authorities, therefore, plaintiff's suit was hit by section 26 of the West Pakistan Consolidation of Holdings Ordinance 1960 and Appellate Court had rightly set aside the decree passed by Civil Court for lack of jurisdictions."

11. It has not been denied that the petitioners tried their luck up to the Board of Revenue, which is vested with the revisional powers under section 13 of the West Pakistan Consolidation of Holdings Ordinance, 1960. After scrutinizing the entire record the Board of Revenue did not see eye to eye with the contentions raised by the petitioners herein and turned down their petition vide order dated 9-6-2011. Still dissatisfied, the petitioner filed a review petition seeking a review of the aforesaid order, but their efforts were not crowned with success in that their review petition was also dismissed vide order dated 14-2-2012 passed by the learned Member, Board of Revenue. Both these orders were challenged by the petitioners by filing the civil suit, but the revisional Court debarred the Civil Court to assume jurisdiction in the face of section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960.

12. I have carefully gone through the impugned order. I do not find any infirmity in it. The question of jurisdiction goes to the heart of the matter and unless a Court is invested with jurisdiction, it refuses to proceed further with the lis. Order VII, Rule 11, C.P.C. itself makes it imperative for a Court that it would first advert to the question whether the plaint was competently filed or not and if it did not have jurisdiction-pecuniary, territorial or subject-matter it would have no option but to stay its hands.

13. The upshot of the above discussion is that the suit instituted by the plaintiffs fell within the purview and mischief of section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960. Therefore, this petition being devoid of merits is hereby dismissed. AG/A-105/L Petition dismissed.