2006 S C MR 1692

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Nawaz Abbasi andSyed Jamshed Ali, JJ

ARBAB JEHANGIR KHAN and others—-Appellants

Versus

INAYATULLAH KHAN and others—-Respondents

Civil Appeal No. 187 of 2002, decided on 30th March,2006.

(On appeal against the judgment, dated 16-3-2001passed by Peshawar High Court, Peshawar, in Civil Revision No. 131 of 2000).

(a) Land Reforms Regulation, 1972 (M.L.R.115)—

—-Paras. 13 & 26—Civil Procedure Code (V of1908), S.9 & O.VII, R. 11— Constitution of Pakistan (1973), Art. 185(3)— Surrender of Shamilat Land under Land Reforms Regulation, 1972(M.L.R.115)—Suit challenging validity of surrender—Rejection of plaintpursuant to bar of jurisdiction in para.26 of the Regulation—Supreme Courtgranted leave to appeal to consider questions that under what conditions andwith special reference to para. 13 of M.L.R. 115, civil Court does or does nothave jurisdiction whether provisions of O.VII, R.11, C.P.C. were invoked byCourts below under genuine circumstances and was recording of evidencenecessary even for determination of question of jurisdiction; and what was thenature of title and possession of suit-land at the time of surrender and whoamong the parties was justified to surrender and with what effect.

(b) Land Reforms Regulation, 1972 (M.L.R.115)—

—-Paras. 13 & 26—Civil Procedure Code (V of1908), S.9 & O.VII, R. 11— Resumption of land by Chief Land Commissioner—Suitchallenging validity of such resumption—Rejection of plaint without framingof issue pursuant to bar of jurisdiction as contained in para.26 of LandReforms Regulation, 1972 [M.L.R.115]—Validity —Order of Chief LandCommissioner was neither without jurisdiction nor coram non judice nor malafide—Such controversy would not fall within domain of civil Court—Remedy ofplaintiff was before forum available under M.L.R.115—Question of jurisdictionwas not controversial, thus, framing of issue would have been an exercise infutility—Order of rejection of plaint was proper.

Sher Zaman v. Muhammad Ishaq PLD 1985 SC 144 andSabir Shah v. Federation of Pakistan PLD 1994 SC 738 fol.

Abdul Rauf v. Abdul Hameed Khan PLD 1965 SC 671distinguished.

Sheikh Wazir Muhammad, Advocate SupremeCourt/Advocate- on-Record for Appellants.

Mian Mohibullah Kakakhel, Advocate Supreme Court andSyed Safdar Hussain, Advocate-on-Record for Respondents.

Date of hearing: 30th March, 2006.

JUDGMENT

JAVED IQBAL, J.—This appeal with leave ofthe Court is directed against the judgment dated 16-3-2001 passed by thePeshawar High Court, Peshawar whereby the civil revision petition preferred onbehalf of appellants has been dismissed.

2. Leave to appeal was granted vide order, dated1-3-2002 which is reproduced hereinbelow for ready reference to appreciate thelegal and factual aspects of the controversy:—

“This is a petitionfor leave to appeal against the judgment, dated 16-3-2001 passed by thePeshawar High Court in Civil Revision No. 131 of 2000, whereby the rejection ofplaint of the petitioners under Order VII, rule 11 of the C.P.C. made by thetrial Court and the lower Appellate Court was upheld, on the ground that it wasa case bf surrender, resumption and allotment of land under Martial LawRegulation 115 and hence the jurisdiction of Civil Court was barred.

(2) After hearing: thelearned counsel on either side, we have tentatively observed that the disputedproperty being Shamilat land was surrendered by two owners of Shamilat. Weintend granting leave to appeal to consider the following points:–

(i) Under what conditionsand with special reference to para.13 of MLR 115, the Civil Court does or doesnot have the jurisdiction?

(ii) Whether theprovisions of Order VII, rule 11, C.P.C. were invoked by the Courts below undergenuine circumstances and was the recording of evidence necessary even for thedetermination of question of jurisdiction?

(iii) What was the natureof title and possession of the suit-land at the time of surrender and who amongthe parties was justified to surrender and with what effect?

3. Heard Sheikh Wazir Muhammad, learned AdvocateSupreme Court on behalf of appellants whose prime contention is that the plaintof the appellants could not have been rejected under Order VII, rule 11, C.P.C.without framing of issues and affording proper opportunity of hearing toappellants and besides that the provisions as enumerated in para.26 of MLR-115have been misinterpreted and misconstrued. It is also argued that action of theChief Land Commissioner whereby the land belonging to the predecessor ofappellants was resumed being illegal and void the controversy could have beendilated upon and adjudicated by the civil Court. In order to substantiate thesaid contention the learned Advocate Supreme Court on behalf of appellants hasreferred the dictum as laid down in Abdul Rauf v. Abdul Hameed Khan PLD 1965 SC671.

4. Mian Mohibullah Kakakhel, learned Advocate SupremeCourt on behalf of respondents while controverting the viewpoint as canvassedat bar by Sheikh Wazir Muhammad, learned Advocate Supreme Court for appellantscontended that no civil suit could have been filed in view of the provisions ascontained 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 concernedauthorities at appropriate time for the redressal of their grievances. In orderto substantiate his contention reference has been made to Sher Zaman v.Muhammad Ishaq PLD 1985 SC 144.

5. We have carefully examined the rival contentionsas mentioned above in the light of relevant provisions of MLR-115, thrashed outthe entire evidence and perused the judgment impugned with care and caution.The pivotal question which needs determination would be as to whether theplaint could have been rejected under Order VII, rule 11, C.P.C. withoutframing of issues pursuant to the bar of jurisdiction as contained in para.26of MLR-115? After having gone through the relevant provisions of law and recordof the case we have no hesitation in our mind that the answer to the abovequestion would be in affirmative for the simple reason that this controversyhas not arisen at the first time but the same has already been set at naught bythis Court in Sher Zaman v. Muhammad Ishaq PLD 1985 SC 144 relevant portionwhereof is reproduced hereinbelow for ready reference:–

“The argument of thelearned counsel is that paragraph 4(6) gives power to the Commission to passonly general orders and not those, which are to be passed as decisions inindividual cases. But there is nothing in the afore-quoted provision to supportit. The expression “where any dispute arises” gives a clear indicationthat the dispute might be between two contesting parties which when becomes agenuine dispute, has to be referred to the Commission. In this case the perusalof the plaint filed by the appellant shows that a dispute had arisen betweenthe parties thereto regarding the carrying into effect of the provisions ofsub-paras.(4) and (5) of paragraph 24 of the Regulation. That being so, thedispute having been noticed by the civil Court there is nothing wrong if theappellant-plaintiff has been referred to the Commission for the resolution ofthe dispute raised before the civil Court. This, it is not contended, was notpermissible under the civil Procedure Code or by Specific Relief Act whereunderthe suit was filed in the civil Court. Although depending upon thecircumstances of each case as observed in some judgments, the civil Court mightdecide a dispute which is to go before the Commission but that would not meanthat the Commission cannot deal with the same under paragraph 4(6) of theRegulation. This Court has in several cases clarified the jurisdictionalquestion. They are, amongst others; Mst. Bibi Avesha v. Chief LandCommissioner, West Pakistan PLD 1966 SC 84, Mst. Hajiani v. West Pakistan LandCommission PLD 1966 SC 114; K.B. Mian Feroze Shah v. Nawabzada Muhammad UmarKhan PLD 1966 SC 340; Nawab Haji Khair Muhammad Khan v. The State PLD 1966 SC604; Nawab Muhammad Farid Khan v. Muhammad Afzal Khan 1968 SCMR 262; NasirAhmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667; Mst. Ahmedi Begum v. MuhammadMushtaq Ali Khan PLD 1971 SC 736; Haji Ali Bux Khan v. The Chief LandCommissioner, West Pakistan 1974 SCMR 98; Mst. Hamida Begum v. Mst. Murad BegumPLD 1975 SC 624; Muhammad Umar v. Mr. S.M. Nasim, so be explained Member Boardof Revenue 1985 SCMR 1591. It may some case which come before the High Courtand the Supreme Court in the writ jurisdiction of the High Court might have tobe treated differently (as in the last mentioned case of Muhammad Umar 1985SCMR 1591 than a case coming through a civil Court. While deciding the matterunder Constitutional jurisdiction of the High Court the superior Courts are tobe guided by several considerations including those relatable to theRegulations itself. This aspect of the Constitutional jurisdiction has been highlightedinto recent judgments of this Court in Federal Land Commission v. Mst. ZarinQasha 1984 SCMR 666 and Federal Land Commission, Islamabad v. Said Rehmat Shah1984 SCMR 669. With regard to the jurisdiction of the civil Courts, no doubt ithas to be remarked that as held by this Court earlier in several cases, theseCourts would be competent to decide various questions but subject to thecondition that where the Commission is also competent to determine a matter thefinal decision shall always remain of the Commission. This rule finds practicalillustration in two of the above-referred cases; One, Mst. Hamida Begum’s casewhere the question regarding incompetence of the Commission to determine aquestion was highlighted; and two, the case of Nasir Ahmad Khan where thisCourt kept an appeal pending adjourning it sine die with a view to enable theappellant therein to get “a decision in his favour from the Chief LandCommissioner upholding his objection as to the validity of thetransaction”. The present case is covered by that rule. The differencebeing that the civil Court returned the plaint to the appellant for presentingit before the Land Reform Forum.”

6. The question of jurisdiction was also discussed inSabir 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 Constitutionalprovision by ouster clause, the superior Courts still have the jurisdiction tointerfere with in the three categories of cases, namely, without jurisdiction,corm non judice and mala fides. Notwithstanding an ouster clause in theConstitution or in any other statute, the Courts have jurisdiction in the abovethree categories of cases’. “L.C. Golak Nath and others v. State of PunjabAIR 1967 SC 1643, His Holiness Kesavananda Bharati Sripadagalvaru v. State ofKerala AIR 1973 SC 1461, Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789,Islamic Republic of Pakistan through Secretary, M/o Interior and KashmirAffairs, Islamabad v. Abdul Wali Khan PLD 1976 SC 57, Federation of Pakistanthrough the Secretary, Ministry of Finance, Government of Pakistan, Islamabadand others v. United Sugar Mills Ltd., Karachi PLD 1977 SC 397; FaujiFoundation v. Shamimur Rehman PLD 1983 SC 457; Federation of Pakistan v. HajiMuhammad Saifullah Khan PLD 1989 SC 166; Khawaja Ahmad Tariq Rahim v. TheFederation of Pakistan PLD 1992 SC 646; Mian Muhammad Nawaz Sharif v. Presidentof Pakistan PLD 1993 SC 473; Federation of Pakistan v. Saeed Ahmad Khan PLD1974 SC 151; Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC26; Sindh Quality Control Board of Drug v. 1993 SCMR 1177; Ch. Zahur Ilahi v.Zulfikar Ali Bhutto PLD 1975 SC 383; Amanullah Khan v. The Federal Governmentof Pakistan 1990 SC 1092; Malik Muhammad Suleman v. Islamic Republic ofPakistan PLD 1976 Lah. 1250; Niaz Ahmed Khan v. Province of Sindh PLD 1977 Kar.604; Stephen Kalong Ningkan v. Government of Malaysia 1970 AC 379; Darvesh M.Arbey, Advocate v. Federation of Pakistan PLD 1980 Lah. 206, State v. ZiaurRehman PLD 1973 SC 49.”

7. On the touchstone of the criterion as mentionedhereinabove the controversy in hand could not have been resolved by the learnedCivil Judge as the order passed by the Chief Land Commissioner, N.-W.F.P.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 acategoric manner by the provisions as contained in para.26 of MLR-115 andpursuant whereof plaint has been rejected under Order VII, rule 11, C.P.C. Thequestion of jurisdiction was not controversial as such the framing of issueswould have been an exercise in futility. The appellants should have approachedthe forum concerned available under the hierarchy of MLR-115 for the redressalof their grievances instead of approaching the civil Court as the controversydoes not fall within its domain of jurisdiction. Insofar as the dictum as laiddown in Abdul Rauf’s case (supra) is concerned it hardly renders any assistanceto the case of appellants as it was given in a different context whileexamining the provisions as contained in sections 8, 10 and 60 of the FrontierCrimes Regulation (III of 1901) whereby it was held that if the impugned actionis not in accordance with the provisions of the Frontier Crimes Regulation (IIIof 1901) that can be assailed before the civil Court.

In the light of what has been stated above thejudgment being unexceptionable does not warrant interference. The appeal beingdevoid of merit is dismissed.

S.A.K./A-51/SC Appealdismissed.