PLJ 2006 SC 1422
[Appellate Jurisdiction]
Present: Javed Iqbal, Muhammad Nawaz Abbasi & Syed
Jamshed Ali, JJ.
ARBAB JEHANGIR KHAN and others--Appellants
versus
INAYATULLAH KHAN and others--Respondents
Civil Appeal No. 187 of 2002, decided on 30.3.2006.
(On appeal against the judgment dated
16.3.2001 passed by Peshawar High Court,
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Land Reforms
Regulation 1972 (MLR 115)--Para 28--Constitution of
PLJ 1985 SC 202; AIR 1973 SC 1461; PLD
1994 SC 738; AIR 1980 SC 1789; AIR 1967 SC 1643; PLD 1976 SC 57; PLD 1977 SC
397; PLD 1989 SC 26; PLD 1983 SC 457; PLD 1975 SC 383; PLD 1989 SC 166; PLD
1975 Lah. 1250; PLD 1992 SC 646; PLD 1977 Kar. 604; 1993; SCMR 473; 1970 AC
379; PLD 1973 SC 49; PLD 1980 Lah. 206; 1974 SCMR 1177 & PLD 1973 SC 49,
ref.
Sheikh Wazir Muhammad, ASC/AOR for
Appellants.
Mian Mohibullah Kakakhel, ASC & Syed
Safdar Hussain, (AOR) for Respondents.
Date of hearing : 30.3.2006.
Judgment
Javed Iqbal, J.--This appeal with leave
to the Court is directed against the judgment dated 16.3.2001 passed by the
Peshawar High Court, Peshawar whereby the civil revision petition preferred on
behalf of appellants has been dismissed.
2.
Leave to appeal was granted vide order dated 1.3.2002 which is
reproduced herein below for ready reference to appreciate the legal and factual
aspects of the controversy:--
"This is a petition for leave to
appeal against the judgment dated 16.3.2001 passed by the Peshawar High Court
in Civil Revision No. 131 of 2000, whereby the rejection of plaint of the
petitioners under Order VII, Rule 11 of the CPC made by the trial Court and the
lower appellate Court was upheld, on the ground that it was a case of
surrender, resumption and allotment of land under Martial Law Regulation 115
and hence the jurisdiction of Civil Court was barred.
2.
After hearing the learned counsel on either side, we have tentatively
observed that the disputed property being Shamilat land was surrendered by two
owners in Shamilat. We intend granting leave to appeal to consider the
following points:
(i) Under
what conditions and with special reference to para-13 of MLR 115, the
(ii) Whether
the provisions of Order 7, Rule 11 CPC were invoked by the Courts below under
genuine circumstances and was the recording of evidence necessary even for the
determination of question of jurisdiction.
(iii) What
was the nature of title and possession of the suit land at the time of
surrender and who among the parties was justified to surrender and with what
effect.
3.
Heard Sheikh Wazir Muhammad, learned ASC on behalf of appellants whose
prime contention is that the plaint of the appellants could not have been
rejected under Order 7, Rule 11 CPC without framing of issues and affording
proper opportunity of hearing to appellants and besides that the provisions as
enumerated in para-26 of MLR 115 have been misinterpreted and misconstrued. It
is also argued that action of the Chief Land Commissioner whereby the land
belonging to the predecessor of appellants was resumed being illegal and void
the controversy could have been dilated upon and adjudicated by the
4.
Mian Mohibullah Kakakhel, learned ASC on behalf of respondents while
controverting the view point as canvassed at bar by Sheikh Wazir Muhammad,
learned ASC for appellants contended that no civil suit could have been filed
in view of the provisions as contained in para-26 of MLR-115 which debars the
jurisdiction of a Civil Court. It is also contended that the appellants should
have approached the concerned authorities at appropriate time for the redressal
of their grievances. In order to substantiate his contention reference has been
made to Sher Zaman v. Muhammad Ishaq (PLJ 1985 SC 202).
5.
We have carefully examined the rival contentions as mentioned above in
the light of relevant provisions of MLR-115, thrashed out the entire evidence
and perused the judgment impugned with care and caution. The pivotal question
which needs determination would be as to whether the plaint could have been
rejected under Order 7, Rule 11 CPC without framing of issues pursuant to the
bar of jurisdiction as contained in para-26 of MLR-115? After having gone
through the relevant provisions of law and record of the case we have no
hesitation in our mind that the answer to the above question would be in
affirmative for the simple reason that this controversy has not arisen at the
first time but the same has already been set at naught by this Court in Sher
Zaman v. Muhammad Ishaq (PLJ 1985 SC 202) relevant portion whereof is
reproduced herein below for ready reference:--
"The argument of the learned counsel
is that Paragraph 4(6) gives a power to the Commission to pass only general
orders and not those, which are to be passed as decisions in individual cases.
But there is nothing in the afore-quoted provision to support it. The
expression "where any dispute arises" gives a clear indication that
the dispute might be between two contesting parties which when becomes a
genuine dispute, has to be referred to the Commission. In this case the perusal
of the plaint filed by the appellant shows that a dispute had arisen between
the parties thereto regarding the carrying into effect of the provisions of
sub-paras (4) & (5) of Paragraph 24 of the Regulation. That being so, the
dispute having been noticed by the Civil Court there is nothing wrong if the
appellant-plaintiff has been referred to the Commission for the resolution of
the dispute raised before the Civil Court. This, it is not contended, was not
permissible under the Civil Procedure Code or by Specific Relief Act
where-under the suit was filed in the Civil Court. Although depending upon the
circumstances of each case as observed in some judgments, the Civil Court might
decide a dispute which is to go before the Commission but that would not mean
that the Commission cannot deal with the same under Paragraph 4(6) of the
Regulation. This Court has in several cases clarified the jurisdiction
question. They are, amongst others: Mst. Bibi Avesha v. Chief Land
Commissioner, West Pakistan (PLD 1966 SC 84), Mst. Hajiani v. West Pakistan
Land Commission (PLD 1966 SC 114); K.B. Mian Feroze Shah v. Nawabzada Muhammad
Umar Khan (PLD 1966 SC 340), Nawab Haji Khair Muhammad Khan v. The State (PLD
1966 SC 604); Nawab Muhammad Farid Khan v. Muhammad Afzal Khan (1968 SCMR 262),
Nasir Ahmad Khan v. Mst. Ismat Jehan Begum (1968 SCMR 667), Mst. Ahmedi Begum
v. Muhammad Mushtaq Ali Khan (PLD 1971 SC 736), Haji Ali Bux Khan v. The Chief
Land Commissioner, West Pakistan (1974 SCMR 98), Mst. Hamida Begum v. Mst.
Murad Begum (PLJ 1976 SC 44), Muhammad Umar v. Mr. S.M. Nasim, Member Board of
Revenue (N.L.R. 1982 Revenue 89). It may also be explained that some case which
come before the High Court and the Supreme Court in the writ jurisdiction of
the High Court might have to be treated differently (as in the last mentioned
case of Muhammad Umar (NLR 1982 Rev. 89) than a case coming through the Civil
Court. While deciding the matter under Constitutional jurisdiction of the High
Court the superior Courts are to be guided by several considerations including
those relatable to the Regulations itself. This aspect of the Constitutional
jurisdiction has been highlighted into recent judgments of this Court in
Federal Land Commission v. Mst. Zarin Qasha (PLJ 1984 SC 299) and, Federal Land
Commission, Islamabad v. Said Rehmat Shah (PLJ 1984 SC 302). With regard to the
jurisdiction of the Civil Courts, no doubt it has to be remarked that as held
by this Court earlier in several cases, these Courts would be competent to
decide various questions but subject to the condition that where the Commission
is also competent to determine a matter the final decision shall always remain
of the Commission. This rule finds practical illustration in two of the
above-referred cases: One, Mst. Hamida Begum's case where the question
regarding incompetence of the Commission to determine a question was
high-lighted; and two, the case of Nasir Ahmad Khan were this Court kept an
appeal pending adjourning it sine die with a view to enable the appellant
therein to get "a decision in his favour from the Chief Land Commissioner
upholding his objection as to the validity of the transaction". The
present case is covered by that rule. The difference being that the Civil Court
returned the plaint to the appellant for presenting it before the Land Reform
Forum."
6.
The question of jurisdiction was also discussed in Sabir Shah v.
Federation of Pakistan (PLD 1994 SC 738) wherein it was held that "even if
the impugned act or action has been protected by Constitutional provision by
ouster clause, the superior courts still have the jurisdiction to interfere
with in the three categories of cases, namely, without jurisdiction, coram non
judice and mala fides. Notwithstanding an ouster clause in the Constitution or
in any other statute, the Courts have jurisdiction in the above three
categories of cases." (L.C. Golak Nath and others v. State of Punjab AIR
1967 SC 1643 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala
AIR 1973 SC 1461, Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789,
Islamic Republic of Pakistan through Secretary, M/o Interior & Kashmir
Affairs, Islamabad v. Abdul Wali Khan PLD 1976 SC 57, Federation of Pakistan
through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad
etc. v. United Sugar Mills Ltd., Karachi PLD 1977 SC 397, Fauji Foundation v.
Shamimur Rehman PLD 1983 SC 457, Federation of Pakistan v. Haji Muhammad
Saifullah Khan PLD 1989 SC 166, Khawaja Ahmad Tariq Rahim v. The Federation of
Pakistan PLD 1992 SC 646, Mian Muhammad Nawaz Sharif v. President of Pakistan
PLD 1993 SC 473, The State v. Ziaur Rehman PLD 1973 SC 49, Federation of
Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151, Federation of Pakistan v. Malik
Ghulam Mustafa Khar PLD 1989 SC 26, Sindh Quality Ckntrol Board of Drug.
Pioneer Laboratories, Karachi 1993 SCMR 1177, Ch. Zahur ilahi, v. Zulfikar Ali
Bhutto PLD`1975 SC 383, Amanullah Khan v. The Federal Government of Pakistan
1990 SC 1092, Malik Muhammad Suleman v. Islcmic Republic of Pakistan PLD 1976
Lah. 1250, Niaz Ahmed Khan v. Province of Sindh PLD 1977 Kar. 604, Stephen Kalong
Ningkan v. Government of Malaysia 1970 SC 379, Darvesh M. Arbey, Advocate v.
Federation of Pakistan PLD 1980 Lah. 206, State v. Ziaur Rehman PLD 1973 SC
49."
7.
On the touchstone of the criterion as mentioned herein above the
controversy in hand could not have been resolved by the learned civil Judge as
the order passed by the Chief Land Commissioner, NWFP Peshawar was neither
without jurisdiction, nor coram non judice and mala fides. It is worth
mentioning that jurisdiction of Civil Court has been ousted in a categoric
manner by the provisions as contained in Para-26 of MLR-115 and pursuant
whereof plaint has been rejected under Order 7, Rule 11 CPC. The question of
jurisdiction was not controversial as such the framing of issues would have
been an exercise in futility. the appellants should have approached the forum
concerned available under the hierarchy of MLR-115 for the redressal of their
grievances instead of approaching the Civil Court as the controversy does not
fall within its domain of jurisdiction. In so far as the dictum as laid down in
Abdul Rauf's case (supra) is concerned it hardly renders any assistance to the
case of appellants as it was given in a different context while examining the
provisions as contained in Sections 8, 10 and 60 of the Frontier Crimes
Regulation (III of 1901) whereby it was held that if the impugned action is not
in accordance with the provisions of the Frontier Crimes Regulation (III of
1901) that can be assailed before the Civil Court.
In the light of what has been stated
above the judgment being unexceptionable does not warrant interference. The
appeal being devoid of merit is dismissed.
(Javed Rasool) Appeal dismissed.