P L D 1964 Dacca 185 (PLP)

5. The aforesaid Ordinance came into effect on and from the 19th January 1962. On 29‑1‑62 opposite‑party No. 1 instituted other Suit No. 23 of 1962 in the Court of the 1st Munsif Sadar, Chittagong, for revocation of the order of the Commissioner of Wakfs passed under section 46‑A of the Bengal Wakf Act, 1934, on 18‑12‑

61. She also filed Miscellaneous Case No. 27 of 1962 in the Court of the District Judge, Chittagong against the self‑same order of the Commissioner of Wakfs passed on 18‑12‑

61. The said miscellaneous case was filed under the provisions of section 35 read with section 50 of Ordinance No. 1 of 1962.

6. The Administrator of Wakfs, East Pakistan entered appearance in other Suit No. 23 of 1962 and put in his written statement. One of his grounds of objection was that the learned Munsif had no jurisdiction to try the suit as will be evident from the provisions of Ordinance No. 1 of 1962, and an issue also was raised to that effect. He further prayed to the Court for decision on that issue as a preliminary one prior to proceeding with the trial of the suit. The learned Munsif, after hearing the arguments of the lawyers of both sides, passed an order on 14‑11‑62, directing the said issue to be tried along with other issues in the suit instead of giving a decision on it separately as a preliminary one.

7. Against the aforesaid order the present revisional applica tion has been preferred by the Administrator of Wakfs, East Pakistan on the grounds that the learned Munsif has committed an error in law in not deciding the issue on jurisdiction as a preliminary one and, secondly, that he has no jurisdiction at all to try the suit as will be evident from the provisions of Ordinance No. 1 of 1962, and as such, his order dated 14‑11‑62, should be set aside.

8. Mr. Md. Israil, the learned Advocate for the petitioner before me has contended that, in view of the provisions of sections 102, 94 (2) (b), 50 and 35 of Ordinance No. 1 of 1962, no one other than a District Judge has any jurisdiction to entertain a suit for the present nature, and as such, the learned Munsif has no jurisdiction to try the suit and, therefore, his order dated 14‑11‑62 should be set aside and also that this Court should give its opinion that the learned Munsif, in terms of law, has no jurisdiction to try such a suit. Further, Mr. Israil has submitted that no question of fact is involved in the decision of the aforesaid issue ; and that it is a pure point of law and, therefore, it is not necessary either to send back the case to the learned Munsif, for deciding this issue as a preliminary one as it will only cause inconvenience to the parties, for, in his opinion, whatever the decision of the learned Munsif may be, the matter has again to come up to this Court for a final decision as to whether, in terms of the provisions of Ordinance No. 1 of 1962, the learned Munsif has at all any jurisdiction to try a suit of the present nature.

9. Section 102 of the aforesaid Ordinance says that, except as otherwise expressly provided in this Ordinance, no decision or order of the Administrator of Wakfs, shall be questioned in any suit or other proceeding in any Court. Section 50 of the Ordinance provides that the Administrator of Wakfs shall decide as to whether a property is Wakf property or not and that the said decision can be challenged by a person aggrieved within three months from the date of such order or decision by filing a petition to the District Judge in accordance with the provision of subsection (1) of section 35 of the Ordinance and the procedure as laid down in section 35 shall be applicable to such an application. Section 94 (2) (b) of the Ordinance provides that any order passed by the Commissioner of Wakfs or any other authority under the Bengal Wakf Act of 1934, prior to the coming into force of Ordinance No. 1 of 1962, shall be deemed to have been passed or made under the said Ordinance.

10. In the present case the order of the Commissioner of Wakfs was made under section 46‑A of the Bengal Wakf Act, 1934. The provision of section 50 of the present Ordinance as already referred to above, corresponds to that of section 46‑A of the repealed Act.

11. From these provisions of the Ordinance, Mr. Israil argued that the only remedy available to the opposite‑party No. 1 in respect of the order made by the Commissioner of Wakfs under section 46‑A of the repealed Act of 1934 on 18‑12‑61, is by way of a petition to the District Judge in terms of section 50 read with section 35 of the Ordinance and not filing a suit in any other Court as has been done by opposite‑party No. 1 in the present case. According to Mr. Israil, the steps taken by the opposite party No. 1 in filing Miscellaneous Case No. 27 of 1962 before the District Judge is the proper course under the provisions of the Ordinance and she knew and realised, that she had no remedy other than this. The said Miscellaneous case was filed after the other Suit No. 23 of 1962.

12. From a consideration of the relevant provisions of the Ordinance No. 1 of 1962. I am of the opinion that there is substance in the contention of Mr. Israil that the learned Munsif has no jurisdiction to try the suit (other Suit No. 23 of 1962) filed by the opposite‑party No. 1.

13. Mr. Haradhan Sarkar, the learned Advocate appearing for the opposite‑party No. 1, has contended that other Suit No. 23 of 1962 was filed by his client against the order of the Commissioner of Wakfs passed under section 46‑A of the repealed Act of 1934 as in the said Act no specific provision was made with regard to the forum for challenging the order of the Com missioner of Wakfs and as such the provisions of Ordinance No. 1 of 1962 shall not apply to the present case. I do not agree with this contention of Mr. Sarkar in view of the provisions of section 94 (2) (b) of Ordinance No. 1 of 1962 and other relative provisions already referred to above. It is clear from a reading of the said section 94 (2) (b) of the Ordinance that any order passed under the repealed Act of 1934 shall be deemed to have been passed under the provisions of this Ordinance. This pro vision in the Ordinance leaves no doubt whatsoever that any action against an order of the Commissioner of Wakfs passed under the repealed Act of 1934, after the coming into force of the present Ordinance, must necessarily be brought in terms of the said Ordinance. It is true, the positron would have been completely different had the other Suit No. 23 of 1962 been filed prior to 19‑1‑1962, but the proceedings having commenced after 19‑1‑1962, i.e., after the promulgation of Ordinance No. 1 of 1962, the opposite‑party No. 1 must comply with the requirements of this Ordinance in challenging the order of the Commissioner of Wakfs. I may reiterate here that other Suit No. 23 of 1962 was filed on 29‑1‑62, i.e., ten days, after the coming into force of the Ordin ance No. I of 1962.

14. I agree entirely with the contention of Mr. Israil that to allow this preliminary issue to be decided by the learned Munsif, which ultimately has got to come up to this Court for a final decision, would be to delay the matter and to put the parties in litigation to further expenses and troubles. As the provision of law is absolutely clear and no evidence is needed to decide the point, I find no difficulty in holding that the learned Munsif has no jurisdiction to try other Suit No. 23 of 1962. In the result, this Rule is made absolute and the order complained of is set aside. The points for my consideration have been only a point of law, I do not award any costs to the petitioner. S. Q./K. B. A. Rule made absolute.