Maintainability of suit

Civil court would have jurisdiction to look into the matter even if the jurisdiction of civil court was otherwise ousted under any enactment including the Colonization of Government Lands (Punjab) Act, 1912 as well as the Punjab Land Revenue Act, 1967, when the order and action had been taken in a mala fide and malicious manner, in excess of jurisdiction or without jurisdiction, and the aggrieved person had been left without any remedy

Present case was not maintainable in the Trial Court on this score alone that the orders passed by the revenue authorities were not result of any of the said problems.

Plaintiff was owner of suit shop in which defendant was tenant and ejectment proceedings were pending before Rent Controller

Plaintiff also filed suit for declaration, injunction and recovery of damages on same cause of action regarding same shop and had also sought interim relief

Single Judge of High Court declined to grant interim relief on the ground that suit was not maintainable

Validity

Single Judge of High Court considered lack of prima facie case made out before him coupled with the view taken regarding malafides of plaintiff and further maintained that defendant would be subjected to an unmerited detriment if injunctive relief was granted, as such the same demonstrated that balance of convenience must be evaluated by Court when considering interim relief so that any order passed could not be employed as an aid towards injustice

Damages were claimed in addition to prayers of declaratory and injunctive relief

Dismissal of application for interim relief could not per se translated into the entire suit being rendered non-maintainable, especially in view of the factum that there was a prayer for damages

Determination of damages was to be on its own merits rendered by the single Judge of High Court uninfluenced by any observation contained in order in question

Intra-court appeal was dismissed in circumstances.

Ex-parte judgment and decree was passed by Trial Court against defendant and Lower Appellate Court dismissed appeal and maintained judgment of Trial Court primarily for the reason that after publication of Court notice in newspaper, service was properly affected and defendant did not contest the matter which resulted in passing of ex-parte judgment and decree which though was challenged after more than 2 years was time-barred and order passed by Trial Court was unexceptionable

Validity

Lower Appellate Court made an observation with regard to careless litigant in comparison with a vigilant and careful litigant but at the same time both the Courts completely failed to appreciate that even if a matter was proceeding ex-parte, it was obligation of the Court to see whether or not the claimant / plaintiff was entitled to any relief or remedy or not

Decisions of two Courts below were illegal, suffered from material irregularity as the Courts failed to exercise jurisdiction vested in them in a judicious and proper manner and the decisions were given in violation of mandatory provisions of law

If such ex-parte judgment and decree remained intact then it would be an abuse of process of Court and miscarriage of justice

High Court set aside ex-parte judgment and decree as well as orders passed by two Courts below and remanded the matter to Trial Court for decision afresh

Revision was allowed accordingly.

Petitioner/defendant contended that right of pre-emption was not heritable right and proceedings in the suit filed by deceased plaintiff would be waste of time and that two courts below had wrongly dismissed his application contending that suit was no more maintainable

Validity

Section 16 of Khyber Pakhtunkhwa Pre-emption Act, 1987 indicated that if a pre-emptor died after making any of the demands mentioned under S. 13 of the Act, his right of pre-emption would stand transferred/devolved to his legal heirs

In the present case, according to S. 13, the pre-emptor after performing the Talb i.e. Talb-e-Muwathibat had died, so his right of pre-emption according to S. 16 had rightly been devolved upon his legal heirs

Judgments by the courts below were well within the framework of law and had properly appreciated and interpreted S. 16 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Constitutional petition was dismissed accordingly.

Plaintiff, if having made out case, but not found entitled to relief of declaration or injunction, could be granted relief by cancelling such order under S.39 of Specific Relief Act, 1877

Principles.