1984 PLP 1097 (MLD)

The facts which form the background are that the appellant's predecessor-in-interest was the Khalifa and Sajjada Nashin of Baba Salahuddin. After the partition of sub-continent Baba Salahuddin migrated from India to Pakistan and the appellant had also accompanied with him since then. During the lifetime of Baba Salahuddin the appellant was declared by Baba Salahuddin as his successor Khalifa Sajjada Nashin. During the lifetime of Baba Salahuddin he had selected the place for his grave where at present the Mazar Sharif is in existence. Baba Salahuddin died on 13-7-1965 at Sehwan Sharif and according to his instructions and his will the appellant brought his dead body at Kotri and laid him in rest in this place. Thereafter, Mazar Sharif was constructed and the appellant started performing the functions of Sajjada Nashin and Khalifa of Baba Salahuddin. On 20-4-1981 the management of the Dargah Sharif was taken over by the Chief Administrator Auqaf, Sind by a Gazette notification dated 20-4-1981. The respondent No.2 filed petition under section 11 of Sind Waqf Properties Ordinance, 1979, whereas the respondent No.1 neither served Haba Salahuddin during his lifetime nor she has any businesses with the affairs of the Dargah Sharif of Baba Salahuddin. The appellant filed application under Order I, rule 10, C.P.C. for joining him as a necessary party in the proceedings initiated by respondent No.1 The respondent No.1 filed objections to his application and raised a plea that the appellant is not in possession of the disputed premises as such he cannot be joined as a party. The learned Additional District Judge after taking into consideration of arguments dismissed the application by order dated 30-11-1982. The appellant being aggrieved with the aforesaid order has preferred this appeal on the grounds mentioned in the memo. of appeal. Mr. M. M. K . A . Zai the learned counsel for the respondent No.1 has contended that the appeal is incompetent. Mr. Abdul Ghafoor Mangi the learned A.A.-G. has also contended that the appeal is incompetent. On the other hand Mr. Abdul Hameed Khan the learned counsel for the appellant has contended that on proper construction of section 12 of the Act and the order would, therefore, be subject to appeal to this Court. I am of the opinion that if jurisdiction is conferred by an Act or Ordinance upon a Court which is clearly established such as the Court of the District Judge without anything more than all the incidents which attach to the proceedings before such a Court would also be attracted to proceedings under the Act and no special provision would be required to enable an appeal to a higher Court or to subject the order passed in the course of such a jurisdiction to the appellate power of the High Court which would be attracted by reason of the fact that the High Court exercises appellate jurisdiction over District Court. The provisions of section 12 of the Act expressly provided that the decision passed by the District Court could only be challenged in appeal before the High Court. I am, therefore, constrained to hold that this Court has n power to interfere in appeal without any order of the District Court but has power to interfere in appeal with any decision on merits. Mr. Abdul Ghafoor Mangi the learned A.A.-G. as well as Mr. Abdul Hameed learned counsel for the appellant have contended that the learned Additional District Judge has no jurisdiction to proceed with the petition. On the other hand Mr. M.M.K.A. Zai learned counsel for the respondent No.1 has contended that the Additional District Judge as has jurisdiction. Before going on to consider the question involved it would be convenient to reproduce action 11 of Sind Waqf Properties Ordinance, 1979 which reads as under:- "Section 11--Chief Administrator to prepare scheme for the administration of Waqf property. (1) The Chief Administrator shall as respects the Waqf property in respect of which a noti?fication. under section 6 has been issued and the gross annual income from which exceeds rupees five thousand, and in other cases may settle a scheme for the administration of such Waqf property. (2) In the settlement of a scheme the Chief Adminis?trator shall give effect to such wishes of the persons dedicating as can be ascertained and to which effect can be reasonably given." The District Court is a Court of general civil jurisdiction for al purpose:: and under the Sind Waqf Properties Ordinance the District Court is assigned the task of making inquiries into the petitions instituted under section 11 of the same Ordinance. Mr. Zai has contended that no Court/tribunal as such had been created at all and that on a proper construction of section 11 it ought to be held that the jurisdiction had been conferred on District Court and Additional District Court who continued accordingly to act as such. Section 11 of the Ordinance provides that a petition be filed to the District Judge within whose jurisdiction the Waqf property or any part thereof is situated. The Ordinance does not provide any power to the District Court for transfer of a petition. This Ordinance is a special Ordinance and Civil Procedure Code is not applicable to the Ordinance. In this view of the matter, the order of transfer of the petition to the Additional District Judge, Kotri is bad in law and order, accordingly. Since the petition has not been decided it shall be deemed to be pending before the District Judge, Dadu. I have no doubt, however, that if the appellant moves application for joining him as a party the same may be considered on merits without prejudice to the respective contentions of the parties Therefore, I remand back the Petition No.6 of 1981 to the learned District Judge, Dadu for disposal in accordance with the provisions of section 11 of the Sind Waqf Properties Ordinance, 1979. The learned District Judge, however will be at liberty to decide application of the appellant for joining him as a party to the petition, after giving full opportunity of hearing to the respondent No.1 and then pass the appropriate order as it may deem fit in accordance with the provisions of the Ordinance. The above appeal stands disposed of in terms of the above judgment. M.Y.H.??????????????????????????????????????????????????????????????????????????????????? Case remanded.