1989 PLP 2756 (MLD)

(2) Whether the plaint has not been verified in accordance with the law? If so, what is its effect? O.P.D. (3) Whether Civil Courts lack jurisdiction to try this suit? O.P.D. (4) Whether the plaintiffs have got no cause of action to file the suit? O.P.D. (5) Whether the plaintiffs lack locus standi to file this suit? O.P.D. (6) Whether the suit is incompetent against defendants No.11 and 12 and 18 and 19? O.P.D. . (7) Whether the plaintiffs are estopped by their act and conduct from filing this suit? O.P.D. (8) Whether defendants from 10 to 17 are bona fide purchasers of the disputed property for valuable consideration without any notice of the alleged agreements in favour of the plaintiffs? O.P.D. (9) Whether defendant No.l, the predecessor-in-interest of defendants No.2 to 9 had entered into agreements for sale of the disputed property in favour of the plaintiff on 14-6-1969 and 22-6-1969? O.P.D. (10) Whether Rs.50,000 were paid to defendant No. 1 under these agreements? O.P.P. (11) Whether the order passed by the Additional Settlement Commissioner dated 31-10-1969 and by the Settlement Commissioner on 8-11-1969 are ultra vires and void? O.P.P. (12) Whether deed of association dated 25-10-1969 was result of fraud an a void? O.P.P. (13) Whether the P.T.D. based on this deed of association is a null and void document? O.P.P. (14) Whether the defendant No. 1 had made a representation to the effect that he was full owner of the disputed property? If so, what is its effect? O.P.P. (15) Whether the agreements alleged by the plaintiffs can be enforced specifically? O.P.P. (16) In case issue No.15 is decided against the plaintiffs, then whether they are entitled to get any damages, if so, what is the measure of these damages? O.P.P. (17) Relief. The trial Court dismissed the suit chiefly because it found that it--had no jurisdiction to call in question the Deed of Association approved by the Settlement Authorities in their exclusive jurisdiction. It, however, allowed refund of Rs.50,000 to the. appellants/plaintiffs.

4. The grounds taken up in the plaint were reiterated at the Bar but the fact remains that the appellants had availed the exclusive jurisdiction of the Settlement Authorities initially by making two applications dated 24-10-1969 and 29-10-1969 and later by preferring an appeal from the order dated 31-10-1969 by which the Deed of Association in favour of the defendants was approved. After having failed there, they came up before the Court of plenary jurisdiction to state that those orders were bad in law. They could not do so. The rule was that if remedies in a special hierarchy were availed, an ordinary suit would not be available to challenge a decision ultimately passed in that hierarchy. It holds the field eversince it was initially enunciated by a Full Bench of this Court in Sultan l, Ali Nanghiana v. Nur Hussain (AIR (36) 1949 Lahore 131), was followed by this court in Abdul Aziz v. Syed Arif Ali and 6 others (P L D 1978 Lahore 441) and' later applied in Central Government through Income Tax Officer, D.I.Khan v. Sher Muhammad Khan and others (P L D 1971 Peshawar 153). Secondly the approval of the Deed of Association in favour of the defendants was an order passed by the Settlement Authorities in the exercise of their exclusive jurisdiction. Its validity was assailed on the ground that it did not bear the necessary stamp nor was it registered under the Registration Act. Para 14 of the impugned judgment elaborately dealt with this aspect holding that it had been correctly drawn on Rs.4 non-judicial stamp attested by a First Class Magistrate and approved by the Settlement Authorities under clause (6) of Manual of Settlement Laws and Procedure published by the Government of Pakistan. The objection that it was void for want of necessary stamps was overruled. Conversely in para 15 it was held that the so-called agreements Exh.P.l and Mark-2 held by the: appellants/plaintiffs were untenable in that those were not written on four-rupee non-judicial stamp paper, nor were attested by any Oath Commissioner, nor did they conform to the provisions of scheme promulgated under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It took the view that the Settlement Authorities could have justifiably refused to accept such agreements and that the order passed by them was saved by sections 22 and 25 of the said' Act. We do not find anything to hold a different opinion on the point. There were no gainsaying the fact that approval accorded to the Deed of Association lay in exclusive jurisdiction of Settlement Authorities. In Muhammad Siddiq etc. v. Chief Settlement & Rehabilitation Commissioner etc. (P L D 1965 S.C. 123), it was held that after approval, such a Deed of Association created vested rights in favour of the associates. Those proceedings were obviously final under section 22 of the Act and were immune from being challenged in a Civil Court. Section 25 of the Act fully applied. Still further, the Act had an overriding effect against all other laws. Section 36 thereof was quite eloquent in that context and, therefore, any claim by the plaintiffs either under the Contract Act or the Specific Relief Act or the Transfer of Property Act as prior promisees could not be entertained. The approval of the Deed of Association was quite sacrosanct. Learned counsel cited Syed Murtaza Shah v. Maj. (Retd.) Mufti Nazar Muhammad etc. (1980 C L C 138) in support of the contention that the Civil Court could scan such a Deed of Association, but a careful perusal of the authority shows that the transferee in that case had paid the entire price of Rs.1,33,400 and presumably had had no occasion to surrender his rights in the property in favour of his associates. Further, the pivotal point therein was upto see whether the attachment of the property was void or not. One of the arguments advanced was that the so-called association was a cloak against attachment of the property. No such consideration was obtaining in the present case and evidently the citation was of no assistance to the appellants.

5. We, therefore, eminently agree with the decision of the Trial Court, affirm it and dismiss the appeal leaving the parties to bear their own costs.

6. The Cross-objection relating to refund of Rs.50,000 had no merits for the simple reason that receipt of this amount was not categorically denied in the written statement where the two agreements relied upon by the plaintiffs were assailed only on the ground of legal vires rather than denying their factum. Any benefit obtained under a contract which is frustrated has to be restored under Section 64 of the Contract Act, 1872. Nor was it urged that the respondents could forfeit this amount as penalty, which again was in the discretion of the Court as contemplated by section 74 of the said Act. The cross-objections are also dismissed. M.Z.S./Z-102/L. Appeal dismissed.