1980 PLP 1881 (CLC)

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18. Jurisdiction of civil Courts barred.‑‑(1) Subject to the provisions of sections 13 and 42 of the Pakistan (Administration of Evacuee Property) Act, 1975, no order passed by a Rehabilitation Authority under this Act shall be called in question in any civil Court in any suit, appeal, execution application or other proceeding."

7. The plain reading of this section shows that to oust the jurisdiction of the civil Court two conditions are necessary; one being that the order must have been passed by the Rehabilitation Authority and secondly such order must have been passed under the Act. Both the conditions must co‑exist. If an order is passed in violation of any one of the requirements the civil Courts undoubtedly have jurisdiction to entertain and determine the issue.

8. Before giving verdict about the controversial issue, i.e. whether civil Court has jurisdiction to determine the cause, it is also necessary to know as to what cases are to be tried by the civil Court.. Section 9, C. P. C. which gives powers to civil Courts to hear the cases reads :‑‑ "

9. Courts to try all civil suits unless barred.‑The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."

9. The pith and substance of this section is that unless the jurisdiction of civil Courts is not ousted, they have jurisdiction to hear a case. By virtue of the provisions of this section civil Courts are granted general jurisdic tion to try all suits of a civil nature in our view wherever the object of proceedings is the enforcement of civil rights a civil Courts has jurisdiction to entertain the suit independently of any statute unless its cognizance is either expressly or impliedly barred. In Abdul Hamid Khan v. Government of West Pakistan and others (P L D 1959 Pesh.136) and Messrs Chalna Fibre Company Limited, Khulna and 4 others v. Abdul Jabbar and 9 others (P L D 1968 S C 381) it has been observed that for entertainment of civil rights, the proper forum is the civil Courts. It is to be remembered that civil Courts are Courts of ultimate jurisdiction and unless their jurisdiction is either expressly or impliedly barred the final decision with regard to a civil right, duty or obligation, shall be that of the civil Courts. Abdul Rauf and others v. Abdul Hamid Khan and others (P L D 1965 S C 671) and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another (PLD 1970 S C 180) are the cases in which the same view is approved. It has been held in Abdul Rauf and others v. Abdul Hamid Khan and others :‑‑ "The question as to whether the act of an executive or administrative officer or a quasi‑judicial or judicial tribunal is without jurisdiction, illegal and not binding on a party, being a matter of a civil nature, is always to be decided by the civil Courts except to the extent to which such jurisdiction may have been taken away." Similarly in Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another it has been observed :‑ "There is no doubt that under it ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil Court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. There is ample authority that in such cases the jurisdiction of the civil Court is not barred."

10. The 'maxim obi jus ibi remedium' (wherever there is a right, there is a remedy), is a fundamental principle of law and any person having a right has a corresponding remedy to institute suits in a Court unless the jurisdiction of the Court is barred. 10‑A. It is significant to state that dispute may either be of civil nature or not of a civil nature. Section 9, C. P. C. only empowers a Court to entertain actions of civil nature. No doubt the Code does not define the term 'suit of a civil nature' but in our view a suit of a civil nature is a proceeding the object of which is enforcement of rights and obligations of citizens. Any proceeding which involves the assertion or enforcement of a civil right is a civil proceeding. A civil proceeding is a process for enforcement of individual right or redressing the individual wrong, civil Courts therefore, on this score, have jurisdiction over all suits of civil nature unless their cognizance is either expressly or impliedly barred.

11. In West Punjab Government v. Pindi‑Jhelum Valley Transport Ltd., Rawalpindi and 6 others (P L D 1963 Lah. 339) it is held that if in the refusal to grant permits, considerations other than those enumerated in sections 47 and 55 of the Motor Vehicles Act are found to have prevailed, them would be misuse of powers and the act of authority would be ultra vires and civil Courts would have jurisdiction to bear the case. In Abdul Ghafar and others v. Government of West Pakistan and others (P L D 1963 Kar. 215) it is held that where there is an allegation of mala fide against Revenue Officer who had decided a case, the civil Court would be competent to go into the question, of mala fide and set aside the impugned order f it was based on such considerations. In Abdul Qadir and others v. Seth Byramji D. Mama (P L D 1963 Kar. 300) it was held that where the Reni Controller acted without jurisdiction his order would be illegal and the civil Court has jurisdiction to interfere with this illegal order. In Abdul Rauf and others v. Abdul Hamid Khan and others the ques tion considered and decided was whether sections 10 and 60 of the Frontier Crimes Regulation ousted the jurisdiction of the civil Courts in view of the circumstances of that case. These sections are as under :‑ "

10. Restriction on jurisdiction of civil Court.‑No civil Court shall take cognizance of any claim with respect to which the Deputy Commissioner has proceeded under section 8, subsection (3), clause (a), clause(b) or clause (d).

60. Finality of proceedings under Regulation.‑Except as therein otherwise provided no decision, decree sentence or order given, passed or made or act done, under Chapter III; Chapter IV, Chapter V or Chapter VI, shall be called in question in, or set aside by any civil or Criminal Court." In this case an order passed in proceeding under the Frontier Crimes Regula tion was challenged in the civil Court. About the jurisdiction of civil Court it is observed that :‑ "No order is an order passed 'under the Act' if it was not passed in exercise of powers granted by the Act and was therefore without jurisdiction. In a particular Act the words 'under the Act' or 'under Chapter . . . . .' may not appear and words of similar import may be used. Hut whatever the phraseology employed, any provisions in an enactment. saying that order passed under the enactment or by virtue of the owners conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction. Of course it is open to the Legislature to provide that not only acts done under an enactment, but even acts which purport to be done under an enactment will be immune from challenge. Such a provision will however be a very exceptional one, a provision which we are likely to come across only during a national emergency." Similarly in Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another it was observed that where an impugned order passed by Revenue Officer is nullity in law, the civil Courts have jurisdiction to examine the case, especially where statutory provisions have not been complied with or the statutory Tribunal has not, acted in confirmity with the fundamental principles of judicial procedure. Azad Kashmir High Court, in Ghulam Hussain v. Nasarullah and others (P L D 1970 Azad J & K 44) has also observed :‑ "(1) If a tribunal or an authority simply purports to act under a statute while in fact the order cannot be termed as one having been passed under it or where it either does something in excess of the jurisdiction conferred upon it by the statute or something which is not in strict conformity with such statute, how can it reasonably be termed as an order to which the protection of the provisions of exclusive jurisdiction can be attracted? An authority which travels beyond the limits ordained by the statute whose creature it is, acts without authority. A tribunal or authority has no right to over‑step its limits or override clear provisions which it .is required to follow in exercise of its jurisdiction. If compliance with these provisions was available, why then to provide them in the statute? Such a course would reduce thetas to a farce. If the Legislature in its great wisdom chose to provide there in the state, how can the tribunals be permitted to dispense with them. How can, therefore, orders passed in disregard or contempt of such provisions be termed as orders within jurisdiction? Suppose an allotment is cancelled without a show‑cause notice to the allottee ; suppose as very often happens, an allotment order is cancelled in review by a Rehabilitation authority which had not passed the allotment order or suppose a person in possession is ejected by the Rehabilitation authority without providing him with an opportunity of being heard, How can it be legitimately said that these arbitrary orders passed in flagrant violation of the Act and the males made thereunder, are not open to question in a civil Court? (2) Civil Courts are tire principal Courts in the country to adjudicate upon civil rights of the citizens either between themselves or between them on the one stand and the Government on the other. Their Jurisdiction to entertain disputes; of civil nature is plenary. It has been very often said that they should not throw away their jurisdiction, of course, not because that may mean any limitation of their authority but because at stale are the tights of citizens, a matter of fundamental importance in the modern political state. So, within the bounds of law, the right of interference by the civil Court is not permissible but also desirable: in the best interest of the State itself."

12. In, view of the settled legal position, the claim, as put forth in the plaint that the President was incompetent to cancel the allotment under the Act and that baud was also practised, only civil Courts are competent to determine tile issues. So far as the contention of the learned counsel that the allotment in the name of appellant was made by A.R.C, who was competent to make the allotment under the Act, we regret we cannot be in line with him. If the order of the President is a nullity, the house cannot be said to be available for allotment and allotment in the name of the appellant, naturally becomes a nullity.

13. For the view we hate taken in the matter, the civil Courts, us held by the High Court, only have jurisdiction to entertain the suit as framed. The appeal, therefore, fails with costs. S.Q. Appeal dismissed.