P L D 1985 Supreme Court 144 (PLP)

MUHAMMAD AFZAL ZULLAH, J.:--This appeal through leave of this Court is directed against judgment dated 25-10-1978 of the Peshawar High Court ; whereby a Civil Revision. was dismissed. The facts and points on which leave to appeal was granted are as follows "The suit under appeal is the last of four suits filed by the appellant against the respondents, it would be sufficient for the purpose of this appeal to observe that in 1972 there had been an exchange of land in village Shinkiari, Hazara District between the first two respondents. But, as according to the appellant, the transaction was a sale and had been wrongly described as an exchange in order to defeat his superior right of preemption, he had filed a suit for pre-emption. This suit however, was dismissed, so he filed the suit under appeal and the relief sought by him in this suit was that the exchange of land between the said respondents was illegal, because it was in violation of the mandatory provisions of M. L. R.

115. This suit was successfully contested by the respondents and was dismissed by the trial Court on 12-3-1975 on the ground that it was barred by res judicata in view of the dismissal of the pre-emption suit of the appellant to which we have referred. The appellant challenged this order in an appeal in the District Court, Abbottabad, and the learned Additional District Judge, who heard the appeal, set aside the finding of the trial Court that the appellant's suit was barred by res judicata, but he was of the view that the suit was not maintainable in view of the mandatory provisions of paragraph 26 of M. L. R.

115. Accordingly, by his order dated 15-10-1976, he observed : , "For the foregoing reasons, I accept the appeal, set aside the impugned judgment and decree and direct the plaint of the suit to be returned to the appellant for presentation to the proper forum. In the circumstances of the case, the parties are left to bear their own costs." The appellant challenged this order in a second appeal in the Peshawar High Court, which was dismissed. Mr. Ansari submitted that paragraph 26 of M. L. R. 115 did not bar the jurisdiction of the regular Courts to entertain declaratory suit, therefore, it is necessary to examine this paragraph. It reads "

26. Bar of jurisdiction.-(1) No provision of this Regulation or of any rules or orders made thereunder shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine. (2) No such Court or authority as aforesaid shall be competent to grant an injunction or other order in relation to any proceedings before Commission or before any officer exercising any power or discharging any function under this Regulation or the Rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer." On a bare perusal of this paragraph, it is obvious that the suits which are barred are suits which call in question "any matter which the Commission is empowered to determine" and suits in which an order passed under the Regulation is challenged. But as submitted by learned counsel, the suit filed by the petitioner neither challenged an order of the Commission, nor an order of any authority appointed under the Regulation, therefore, learned connsel submitted that the Courts below had misread this paragraph and he relied in support of his submission on a judgment reported in Sar Anjarn Klan v. Mir Afzal and 14 others (P L D 1972 Pesh. 37) and on several other judgments. Th"ppeal turns solely on the construction of paragraph 26 and to say the least the view taken by the High Court requires further examination." ?Learned counsel for the appellant has reiterated that paragraph 26 of the Regulation does not exclude the jurisdiction of a civil Court. He has while conceding that the Land Commission is "empowered to determine" The argument of the learned counsel is that paragraph 4(6) gives power to the Commission to pass only general orders and not those which are to be passed as decisions in individual cases. But there is nothin in the aforequoted provision to support it. The expression "where an dispute arises" gives a clear indication that the dispute might be between two contesting parties which when becomes a genuine dispute, has to referred to the Commission. In this case the perusal of the plaint filed by the appellant shows that a dispute had arisen between the parties there regarding the carrying into effect of the provisions of sub-paragraphs (4 and (5) of paragraph 24 of the Regulation. . That being so, the dispute having been noticed by the civil Court there is nothing wrong if the appellant-plaintiff has been referred to the Commission for the resolution of the dispute raised before the civil Court, This, it is not contended, was not permissible under the Civil Procedure Code or by Specific Relief Act whereunder the suit was filed in the civil Court. Although depending upon the circumstances of each case as observed in some judgments, the civil Court might decide a dispute which is to go before the Commission but that would not mean that the Commission cannot deal with the same under paragraph 4(6) of the Regulation. This Court has in several cases clarified the jurisdictional question. They are, amongst others Mst. Bibi Avesha v. Chief Land Commissioner, West Pakistan (PLD1966SC84? ), Mst. Hafani v. West Pakistan Land Commission (PLD1966SC114), K. B. Mian Feroze Shah v. Nawabzada Muharpmad Umar Khan (P L D 1966 S C 340), Nawab Haji Khair Muhammad Khan v. The State (P L D 1966 S C 604), Nawab Muhammad Farid Khan v. Muhammad Afzal Khan (1968 S C M R 262), Nasir Ahmad Khan v. Ismat Jehan Begum (1968 S C M R 667), Mst. Ahmedi Begum v. Muhammad. Mushtaq Ali Khan (P L D 1971 S C 736), Haji All Bux Khan v. The Chief Land Commissioner, West Pakistan (1974 S C M R 98), Mst. Hainida Begum v. Mst. Murad Begum (P L D 1975 S C 624) and Muhammad Umar v. Mr. S. M. Nasim, Member Board of Revenue (N L R 1982 Rev. 89). It may also be explained that some cases which come before the High Court and the Supreme Court in the writ jurisdiction of the High Court might have to be treated differently as in the last mentioned case of Muhammad Umar, than a case coming through the civil Court. While deciding the matters under Constitutional jurisdiction of the High Court the superior Courts t are to be guided by several considerations including those relatable t the Regulation itself. This aspect of the Constitutional jurisdiction ha been highlighted in the recent judgments of this Court in Federal Land Commission v. Mst. Zarin Qaisha (1984 S C M R 666) and Federal Land Commission, Islamabad v. Said Rehmat Shah (1984 S C M R 669). With regard to the jurisdiction of the civil Courts, no doubt it has to be remarked that as held by this Court earlier in several cases, these Courts would be competent to decide various questions but subject to the condition that where the Commission is also competent to determine a matter the final decision shall always remain of the Commission. This rule finds practical illustration in two of the above referred cases : One, Mst. Hamida Begum's case where the question regarding incompetence of the Commission to determine a question was highlighted ; and two, the case of Nasir Ahmad Khan where this Court kept an appeal pending adjourning it sine die with a view to enable the appellant therein to get "a decision in his favour from the Chief Land Commission upholding his objection as to the validity of the transaction". The present case is covered by that rule. The difference being that the civil Court returned the plaint to the appellant for presenting it before the Land Reform Forum. That being so, the judgment of the Peshawar High Court cited from the appellant side is of no help to him. In the light of the foregoing discussion the argument raised by the learned counsel fails. This appeal is accordingly dismissed with no orders as to costs. M. z. M.? Appeal dismissed.