2016 PLP 135 (YLRN)

NISAR HUSSAIN KHAN, J.

Petitioners have questioned the judgment and decree of learned Additional District Judge-II, Mardan dated 29,7,2002 whereby petitioners' appeal was dismissed and judgment and decree of learned Senior Civil Judge, Mardan dated 9.3.1992 dismissing the petitioners' suit was maintained.

2. Mr. Qamar Zaman Tangi, learned counsel for petitioners argued that both the courts below have erred in law by not considering the revenue record tendered in evidence according to which petitioners' predecessor was entered as owner of suit property since settlement of 1925-26 and till date, after his demise, his legal heirs were recorded as owners. He maintained that only superstructure in the shape of flour mills was installed by Hindu evacuee and Settlement Department or for that matter the Custodian of Evacuee Properties has taken over rights of the evacuees and not the local Muslims. He further submitted that the trial court as well as the appellate court have wrongly decided the issues of limitation because petitioners have filed the suit after judgment of the august Supreme Court well within time, Mr. Tariq Khan Hoti, learned counsel for petitioners contended that the instant Civil Revision is delayed by 10/11 days but that is condonable. He maintained that suit as well as the Civil Revisions are well within time; that petitioners are recorded as owners in the revenue record which factum has not been considered by the two courts below; that in view of the judgment of the august Supreme Court, civil court has the jurisdiction to entertain the suit while both the courts below have wrongly returned their findings on the issue. Likewise, the principle of res judicata is not attracted to the instant case. In this regard placed reliance on Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner Karachi and others (PLD 1965 Supreme Court 356).

3. As against that, Mr. Abdul Sattar Khan, learned counsel for respondents argued that petitioners have challenged the orders of Custodian before the civil court which in view of the bar contained in Section 41 of the Pakistan (Administration of Evacuee Properties) Act, 1957, lacks the jurisdiction. He maintained that the phrase " if so advised" has great significance with regard to jurisdiction and of other legal issues, in view of which permission was not unqualified and both the courts below have rightly decided the issues of limitation, jurisdiction as well as res-judicata. On facts, he argued that PTO was issued on 6.1.1961 while PTD was issued on 6.1.1969 against which petitioners themselves invoked the jurisdiction of the Custodian who after recording evidence, dismissed their objection while the High Court elaborately discussed all the factual and legal aspects of the case and have turned down their claim. He lastly submitted that the instant revision petition is time barred which is not condonable, hence deserves outright dismissal.

4. I have heard the learned counsel for the parties and have gone through the record with their valuable assistance.

5. Chequered history of the case dates back to 1953 when the suit property having been considered as evacuee property was allotted to Sufi Faizullah son of Jamaluddin, a claimant. Legal heirs of Nawab Sir Muhammad Akbar Khan filed a suit before the Assistant Custodian challenging the allotment in favour of Sufi Faizullah on the ground that the property in question was not evacuee property but was ownership of local Muslim and only superstructure of machinery including the grinding flourmills was the ownership of evacuee which be removed and vacant possession be handed over to them. Once there suit was dismissed by the Assistant Custodian for lack of evidence. The Additional Custodian by accepting appeal of the plaintiff remitted the case to the Assistant Custodian to decide the lis afresh after providing proper opportunity to the plaintiffs, to adduce necessary evidence. After remand, it appears, that once against their suit was dismissed and the same was the fate of their appeal. Being dissatisfied with the orders of the Settlement Authorities, petitioners filed W.P. No, 255/63 which too was dismissed by this court on 29.6.1968. Petitioners filed C.P. No.29-P/1966 before the august Supreme Court which was also dismissed on 24.10.1969 by discussing all factual and legal aspects of the case. However, on the request of the petitioners' counsel that the order of Custodian on petitioner's claim under section 22 was without jurisdiction, it was observed by Hon'hle Supreme Court that the petitioner himself invoked the Custodian's jurisdiction but if he feels that it was a wrong step he can pursue his remedy in the civil court. He may do so if so advised. In the light of last observation of the august Supreme Court, petitioners filed Civil suit in the court of Senior Civil Judge, Mardan in second round of litigation. Though there are some interlocutory orders against which petitioners have filed appeals/revisions which are irrelevant for the issue before this court and what relevant is that the suit was dismissed after recording evidence and same was the fate of appeal, hence the instant revision.

6. Dispute between the parties relates to property, which, according to the petitioners was ownership of their predecessor, local Muslim owner, which could not be considered as an evacuee property, except the grinding flour machine installed by the Hindu evacuee. Whereas the Settlement authorities have treated it as an evacuee property, put it in the Central Pool and allotted to the respondents. To resolve the controversy, we have to revert to the Settlement Laws enacted for allotment of the evacuee properties and settlement and rehabilitation of the Muslim refugees. Section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 empowers the Central and the Provincial Government to acquire any evacuee property and put the same in compensation pool by virtue of section 4 of the ibid Act. In terms of section 9, Settlement Commissioner was to be appointed who by virtue of section 10 could transfer or dispose of any property out of compensation pool by sale, by means of auction or allot the same in accordance with the allotment scheme chalked out for that purpose to the rightful claimants. Contemporaneously Pakistan (Administration of Evacuee Properties) Act-Xll of 1957 was in the field. Section 3 of which contemplates that no person or property not treated as evacuee or as evacuee property immediately before 1st January, 1957, could be treated as evacuee or evacuee property after the said date, notwithstanding anything provided in the said Act, It clearly envisages that a property which was not declared as evacuee till 1.1.1957, could have never been considered as evacuee property with the exception that it would have no application to a person or property regarding which any action has commenced or any proceedings are pending before the date mentioned therein for treating the same as evacuee property. Particularly, section 3(2)(b) stipulates that provision of subsection (1) of section 3 would have no application to any property which was occupied, supervised or managed by a person whose authority or right to do so after 28th February, 1947 has not been accepted or approved by the Custodian. By virtue of section 7, all evacuee properties were bound to vest and shall be deemed always to have been vested in the Custodian with effect from the 1st day of March, 1947, Section 12 of the ibid Act empowers the Custodian to take over possession of the evacuee property. Rehabilitation has been authorised under section 18 of the ibid Act to allot evacuee property taken over by the Custodian for rehabilitation of displaced persons.

7. It appears from the record that all essential decisive steps, in accordance with referred provisions of Administration of Evacuee Properties Act 1957 were taken by the Settlement authorities by declaring the same as evacuee property and then took over its possession and consequential allotment to Sufi Faizullah son of Jamaluddin. The objection of any interested party, relating to such property treated by the Custodian or Rehabilitation authority as evacuee property, could be preferred before the Custodian in contemplation of section 22 of the ibid Act, to the effect that the property so declared as evacuee, is not the evacuee property or his interest in the property should not be affected by virtue of subsection (2). Any such objection was to be filed within 30 days, on which Custodian was to hold enquiry and after taking such evidence, as could be produced by the interested party, the Custodian was to pass an order rejecting the application or allowing it as a whole or in part. Petitioners did avail the remedy provided under section 22 before the competent forum which was turned down. Their appeal preferred thereagainst was also dismissed. Petitioners have questioned the order of Custodian before this court in W.P. No. 255/1963 which was also dismissed after considering all factual and legal aspects of the case and it was maintained by the august Supreme Court, as well.

8. Case of petitioners is mainly based on the observations of the august Supreme Court in last paragraph of the judgment which, for convenience and to better appreciate the issue in hand, is reproduced as follows:- "The learned counsel for the petitioner submitted at the end that the order of the Custodian department on the petitioner's claim under section 22 aforesaid, was without jurisdiction, as the property by then had been acquired by the Central Government under section(sic.) of the Act. The petitioner, had himself invoked the Custodian's jurisdiction, but if he feels that it was a wrong step he can pursue his remedy in the Civil Court. He may do so if so advised."

9. Petitioners are trying to over-stretch the sentence: "but if he feels that it was a wrong step he can pursue his remedy in the Civil court," to bring their case within the jurisdiction of the civil court, to bounce back, on the basis of evidence led in the trial of instant suit. Firstly, observation so referred above are not unqualified. Rather it was further observed by the august Supreme Court that "he may do so if so advised". The phrase "if so advised" is of great significance which explicitly implies that he may do so, but at his own risk and if so permissible under the law. Moreso while considering the case of petitioners viz-a-viz the referred last paragraph, one cannot loose sight of the immediate preceding paragraph of same judgment of Supreme Court which for ready reference is reproduced as follows:- "The High Court has further held that on the petitioner's own admission in the claim application under section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, the possession of the disputed property was taken over by the Custodian as an evacuee property after partition and he has exercised control over it since then. The High Court was, therefore, right in holding that the property having been treated as an evacuee property immediately before the 1st January, 1957, could not be declared as a non-evacuee property thereafter the writ petition was also found to suffer from having been brought in 1963, although the Custodian had decided the claim adversely to the petition in the year 1960. The delay in filing the petition was not satisfactorily explained. We do not consider that any case is made out for our interference and we dismiss this petition."

10. Once the competent forum had resolved the dispute relating to the property in question that it was an evacuee property in terms of section 22 of the Pakistan (Administration of Evacuee Properties) Act, 1957, it could not be re-opened before the civil court in view of express bar contained in section 41 of the ibid Act. In this regard ratio of Ellahi Bakhsh and others v. Muhammad Siddique and others (2008 SCMR 312) may be relied upon. The judgment in Devachand Muljimal's case (PLD 1965 Supreme Court 356) is distinguishable on its peculiar facts, and is not relevant.

11. Another argument on the question of jurisdiction, which though has not been pressed, may be advanced that since repeal of the Settlement Laws in 1974, the jurisdiction exclusively vests in the civil court for determining the issue in hand, the plain and simple answer would be that all the actions taken by the Custodian and Rehabilitation authority under challenge in the suit, were passed when those laws were in operation. All actions taken, orders passed, notifications issued are protected in terms of section 6 of the General Clauses Act, 1897. So this argument too is not available to the petitioners. In this regard reference may be made to the case of Nazir Ahmed and others v. Ghulam Mehdi and others (1988 SCMR 824). Beside that not only actions were taken during the subsistence of the Settlement laws but even instant suit too was filed in 1969 when settlement laws were in operation, hence this objection also would be irrelevant.

12. Principle of res judicata is embodied in section 11 of the C.P.C. which contemplates that no court shall try any suit or issue in which the matter directly and substantially remained in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court, In the instant case, undoubtedly, former litigation was relating to the same property and were between the same parties but were before the custodian, a special forum established under the Special Statute which was vested with exclusive jurisdiction under section 22 of the Act XII of 1957 to resolve the dispute as to whether property is evacuee or otherwise. Of course section 11, C.P.C. Explanations-II refers to the competence of Court trying former as well as subsequent suits. For applicability of principle of res judicata, competence of former court is of paramount significance, which would certainly bar the subsequent suit. The object of the principle is to put an embargo on successive and repeated litigation on the same subject matter between the parties. Main object of law of limitation and res judicata is to put an end to unwarranted and uncalled for litigation, which are laws of propriety, peace and tranquillity to put the litigation at rest on a particular event. Since the Custodian was vested with exclusive jurisdiction to decide the issue in terms of section 22 of the Act-XII of 1957, so it was competent forum to decide the matter which cannot be re-agitated before the civil court on principle of constructive res judicata. Such authority of custodian was provided with full legal protection by expressly ousting the jurisdiction of Civil Court under section 41 of ibid Act. Assuming, if this court interferes and allows the instant petition, it practically would not only set aside the judgment of the trial court as well as the appellate court in this case but also judgment of the High Court passed in W.P. No.255/63 as well as of the august Supreme Court, which would be a nullity in the eye of law and violation of the principle of constructive res judicata. Because the same subject matter was in issue between the same parties in the said Writ Petition as well as the CPLA. Hence the learned lower courts have rightly resolved the issue of res judicata against the petitioners.

13. Petitioners have produced some revenue record according to which Nawab Sir Muhammad Akbar Khan was recorded as owner of Khasra No,1548 but strangely such record was not tendered in evidence before the Asstt: Custodian, though case was once remanded on petitioners' appeal for adducing such evidence. On the other hand, there is a Provisional Transfer Order of 30.3.1961 in favour of Sufi Faizullah followed by Permanent Transfer Order dated 6.1.1969 Ex.DW.1/2 and Ex.DW.1/3 respectively, relating to the transfer of Mandi C-928/A Jogindar Singh Oil, Flour Grinding Mill against consideration of Rs.50,603/- full amount of which was recovered. The amount mentioned in the PTO, though at the moment, seems to be meagre one but in 1961 it was a considerable amount, against which property in question was transferred, followed by transfer of possession. These are the official documents tendered in evidence which carry presumption of correctness.

14. Though learned counsel for petitioners maintained that the instant Civil Revision is delayed by 10/11 days which should be condoned and learned counsel for respondents also sought dismissal of the instant petition on the same ground, however, perusal of record particularly, the judgment of the appellate court reveals that the impugned judgment was passed on 29.7.2002 and application for the certified copies were filed on same date as per entries of the copying branch. While copy was prepared and delivered on 27.9.2002. whereas instant Civil Revision was filed, firstly on 22.11.2002 and then, after removal of the objection, on 18.12.2002, Limitation provided in section 115, C.P.C. for filing revision petition is 90 days. The civil revision was filed 9 days before the expiry of 90 days, even if it is considered to have been filed on 18,12.2002, So far as time consumed by the copying branch in preparation of the copy and delivery is concerned, that is to be excluded in terms of section 12(2) of the Limitation Act. Section 29(2) of the Limitation Act with reference to period provided in section 115 of the Civil Procedure Code for purpose of reckoning of period of limitation, came under consideration before the august Supreme Court in case titled Hafeez Ahmad and others v. Civil Judge Lahore and others (PLD 2012 Supreme Court 400) wherein it was settled once for all that Code of Civil Procedure for the purpose of limitation provided in section 115, C.P.C. shall be considered as special law and sections 4, 9 to 18 and 22 of the Limitation Act shall be applicable unless it is expressly excluded by such special or local law. Since section 12 has not been specifically or expressly excluded by the Code, hence it would squarely be applicable to revision petition filed under section 115, C.P.C. and in view of the ratio decidendi of case supra, the time consumed in obtaining the certified copies shall be excluded from the period of limitation prescribed therefor. Admittedly, on exclusion of the period consumed in obtaining the certified copies, instant civil revision is well within time, hence objection so raised and the concession so offered by counsel for petitioners is misconceived and misplaced.

15. For what has been discussed above, this court could not find any misreading or non-reading of evidence nor any violation of law which may warrant interference of this court in concurrent findings of facts as well as law, recorded by courts below. Thus finding no merits, this revision petition stands dismissed, with no order as to costs. ZC/146/P Revision dismissed.