1988 PLP 119 (CLC)

Ch. Muhammad Saeed for Appellant. S.M. Zubair A.A.‑G. for Respondent. Date of hearing: 5th October, 1987. The appellants in this Regular Second Appeal instituted a suit on 29‑3‑1975 against the respondent in the Civil Court at Bhakkar for a permanent injunction for restraining the respondent from interfering with the cultivating possession of the appellants as to the land measuring 1200 kanals in Lots Nos.445 and 452 situated in Rakh Hyderabad, Tehsil Bhakkar District Mianwali alleging that the appellants were allotted by the respondent the said land under the Tube Well Scheme dated 25‑4‑1953 the possession of which was given to the appellants on 23‑7‑1953. The appellants made a payment of Rs.1,350 in advance which included an amount of Rs.100 as trial boring fee. The respondent however, according to the terms of the agreement failed to bring out the trial boring as such did not perfrom his part of the agreement. That was claimed that the respondent had without notice and without any compensation illegally cancelled the aforesaid allotment in favour of the appellants and on the basis of the very cancellation he was trying to interfere with the legal possession of the appellants.

2. The respondent contested the suit and raised a preliminary objection regarding the jurisdiction of the Civil Court to entertain the suit.

3. The learned Civil Judge framed a preliminary issue to the effect that whether the Court had got no jurisdiction to entertain that suit. The learned Civil Judge relying upon Section 74‑A of the Thal Development (Punjab Amendment) Act No. XLVI of 1975 which section embodied the ouster of jurisdiction of the Civil Courts held that the Civil Court had no jurisdiction to entertain the suit and as a result thereof rejected the plaint under Order VII, Rule 11, C.P.C. vide his order dated 22‑12‑1975.

4. The appellants aggrieved there-from filed an appeal in the Court of the District Judge, Mianwali, who after agreeing with the learned Civil Judge dismissed the appeal vide order dated 4‑3‑1976 in limine.

5. The learned counsel for the appellants in this appeal having been brought from the said order of the learned District Judge has contended that according to section 30 of the Thal Development Act, 1949, any land which is allotted to a tenant in accordance with the Provisions of the Act cannot be resumed, or its allotment cannot be cancelled except for the defaults committed by the tenant. When an action has been taken or any order has been passed by any authority under the Thal Development Act in violation of the provision thereof then the jurisdiction of the Civil Court cannot be held as barred to entertain a suit. The provision of section 74‑A only aims at that any order passed by the Provincial Government, Board of Revenue, the Collector or any other Revenue Officer will not be challenged in the Civil Court provided they same has been passed in accordance with law. According to the learned counsel both the Courts have wrongly held that the Civil Court has no jurisdiction to entertain the suit as brought. The learned counsel in support of his contention has relied upon Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671, in which it has been held that the "Civil Courts have jurisdiction as provided in section 9 of the Civil Procedure Code to try all suits of a civil nature excepting those the trial of which is expressly or impliedly barred 111 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 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 any provision in an enactment saying that orders passed under the enactment or by virtu4 of the powers 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 apply only to orders passed with jurisdiction" Sh. Inayat Ullah and others v. M.A. Khan and others (PLD 1964 SC 126) , in this decision at page 135 it has been held that "despite the provisions of the Ordinance (West Pakistan Waqf Properties Ordinance XXVIII of 1961) shuting out jurisdiction of the ordinary Courts in respect of orders passed or acts done under the Ordinance, the corrective processes of the Civil Courts would be available if these functionaries exceed their statutory powers". Haji Muhammad Abrahim and others v. Fateh Muhammad, Liquidator, Ghausia Multipurpose Co‑operative Society Ltd. Lyallpur (PLD 1960 (W.P.) Lahore 1106), in this case it has been held that "although section 42 (6) of the Co‑operative Societies Act, 1912 bars the jurisdiction of the Civil Courts in respect of any matter connected with dissolution of a registered society and although under Rule 26 of the Punjab Co‑operative Societies Rules the liquidator is entitled to determine the contribution to be made by members and past members, yet the jurisdiction of Civil Courts is never altogether barred, because even in cases where there is a provision as to the exclusion of Civil Court's jurisdiction, Courts are entitled to see whether the authority concerned acted in compliance with law. If the order of the liquidator is to be found to be without jurisdiction, relief against it can be claimed in Civil Courts".

6. The learned counsel for the respondent while opposing this appeal has relied on Section 74‑A of the said Act which is to the effect that "a Civil Court shall have jurisdiction in any matter, which the Collector is empowered by this Act to dispose of and shall not take cognizance of the manner in which the Provincial Government, Board of Revenue, Collector or any other Revenue Officer exercises any power vested in him by or under this Act." and Section 9 of the Civil Procedure Code which is being reproduced here, "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, and has also submitted that an appeal having been provided by the Thal Development Act should have been resorted to rather than filing the civil suit which remedy can only be invoked after exhausting the remedy under the Act. In this behalf he has relied upon Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur (PLD 1970 SC 180) , wherein it has been held that "ordinarily a party in revenue matters should exhaust all the 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. The Civil Courts have jurisdiction to examine into cases where provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". It appears that both the Courts below have given effect to Section 74‑A of the said Act verbatim without weighing that whether the Act complained against as alleged in the plaint was done within the four corners of the Statute and as such was with jurisdiction so as to oust the jurisdiction of the Civil Court. As a Civil Court has the jurisdiction to see that whether an act complained against is with. jurisdiction or orther-wise then as to the decision relied upon by the, learned counsel for the respondent it is worth stating that the decision in principle is rather in consonance with the decisions relied upon by the learned counsel for the appellants. If it is proved before a trial Court that an act of a respondent is absolutely without jurisdiction then in my opinion there is no bar in instituting a suit without exhausting the remedy of appeal and the same is the view expressed in the decision relied upon by him wherein it is said that there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. The matter requires adjudication as to whether the action taken by the respondent is in accordance with law so as to attract the ouster clause as to the jurisdiction of the Civil Court on which the decision relied upon by the appellants throw much light, therefore, the findings of both the Courts below on the question of jurisdiction on bare reliance of Section 74‑A are hereby set aside in accepting this appeal and the case is remanded to the learned Civil Judge to proceed afresh in the light of the law as discussed here. As this appeal has been decided on a legal question, therefore, there is no order as to costs. A. A. /1‑35/L Appeal accepted.