' This civil revision petition has been filed to call in question an order passed by a learned Civil Judge; whereby the petitioner's application for examination of his witnesses was dismissed on the ground that the list of witnesses was not submitted within the period as prescribed in Order XVI, rule 1, C. P. C. The two points mentioned in the impugned order for refusing the request of the petitioner are : (1) that the affidavit submitted in support of his application was not duly attested by a Notary Public or an Oath Commissioner; and (ii) that the petitioner was bound to submit the list of his witnesses within seven days of the framing of the issues, which was not submitted by him within time.
2. Learned counsel has filed copies of the application and the affidavit submitted before the learned trial Judge. It is specifically mentioned in the application that he was suffering from ailment of eyes; therefore, he could not do the needful in connection with the submission of the list.
It was also submitted in the application that the default was not wilful. Although the copy of the affidavit shows that the petitioner/deponent was identified by somebody-presumably for the purpose of attestation of the affidavit, it is correct that there is no endorsement of attestation. Be that as it may, a positive assertion having been made in the application that the petitioner was not able to do the needful on account of illness and further that the default was not wilful the learned trial Judge should not have adopted a technical course. The provisions contained in Order XVI, rule 1 (1) are not intended to trap a litigant for closing his evidence. The petitioner states that he was present in Court on the day when the impugned order was passed. Even to day his eyes visibly looked sore. The learned Judge could have verified the correctness or otherwise of his assertion made in the application by asking the petitioner few questions about the illness as has been done in this Court. After hearing the petitioner and observing the condition of his eyes it cannot be said that he had made a false statement in his application. This supposition gets support from a certificate issued by a professor of a Medical College showing that the petitioner was under treatment for nearly two years. If the learned Judge wanted not to accept the assertion made by the petitioner in the application on the ground that the affidavit was not properly attested, the petitioner could have been afforded opportunity to get the formality completed. The affidavit, after its submission in Court, had become part of the record and proceedings of the Court and any inadvertent omission or error qua any proceeding in Court, could be corrected under 3 section 153 read with section 151, C. P. C. The impugned order is not sustainable. The same accordingly is set aside.
3. In view of the circumstances noted above, it is held that the petitioner has shown good cause for not submitting the list earlier. His application dated 25-10-1978 for submission of list and examination of the witnesses is allowed. There shall be no order as to costs. Petition accepted.
1979 CLC 551 [Lahore] Refore M. Mehboob Ahmad, J MUHAMMAD DIN AND 3 OTHERS-Appellants versus ADMINISTRATOR-GENERAL OF AUQAF, PAKISTAN, ISL AMABAD AND 2 OTHERS-Respondents Regular Second Appeal No, 529 of 1976, decided on 15th January 1979.
(a) West Pakistan Land Revenue Act (XVII of 1967)- -- S. 172 read with Civil Procedure Code (V of 1908), 0. VII, r. 11 & S. 9-Jurisdiction-Correction of entries in Jamabandi-Jurisdiction of civil Court under S. 173, held, barred.-[Jurisdiction]. [p. 552]A
(a) Civil Procedure Code (V of 19118)- -- 0. VII, r. 11 read with Auqaf (Federal Control) Act (LVI of 1976), Ss. 11, 12, 13 & 21-Plaintiff challenging notification issued under Act-Provisions of Act, held, bar jurisdiction of civil Court in matter.-- [Jurisdiction]. [p. 552]B Ch. Abdul Wahid for Appellants.
Mahmood Ahmad Khan for Respondents..
' In this second appeal, the judgment dated 26.3-1978 delivered by the Additional District Judge, Gujranwala affirming on appeal the order dated 26.2-1978 passed by the Civil Judge, Gujranwala rejecting the plaint of the appellants under Order VII, rule 11, C. P. C. Has been called in question.
2. The brief facts of the case are that the appellants filed a suit for a declaration to the effect that they were the owners of the land in dispute through adverse possession and that the Notification No, 2/4/AGA/77(26) dated 17-8-1977 issued by the respondent was illegal and ex parte and as such was not binding on the appellants with the consequential relief by way of a permanent injunction that the respondents should not interfere in the possession and proprietary rights of the appellants in the land in dispute, situate in village Mandiala Waraich, Tehsil and District Gujranwala. The learned Civil Judge, Gujranwala, seized of the matter found that the suit was barred by time and consequently he rejected the plaint, by his order dated 26-2-1978.
' The appellants preferred an appeal to the Additional District Judge, Gujranwala, who upheld the order of the trial Court and dismissed the appeal by the impugned judgment dated 26-3-1978.
Hence this second appeal.
3. The only contention raised by the learned counsel for the appellants is that the plaint had been rejected by the trial Court on account of the same being barred by time, limitation having been reckoned from 1950-51 when entry in the jamabandi was made adverse to the appellants. He submitted that the entry aforementioned could be rebutted by the appellants and as such rejection of the plaint as being barred by time was not called for in the circumstances of the case.
He further submitted that the learned first Appellate Court also did not advert to the matter in its proper perspective which resulted in the wrong decision taken by it.
4. I enquired from the learned counsel as to whether any motion had been made by the appellants before the Revenue Courts about correction of the alleged wrong entry made in 1950-51 to which he replied in the negative. It may be pertinently pointed out that under section 172 of the Land Revenue Act also, the jurisdiction of the Courts is barred in matters enumerated therein which, inter alla, include the correction of entries in the' jamabandi. The orders of the Courts blow, therefore, are unexceptionable in that they have rightly found that the plaint as presented before them was barred by time and consequently liable to rejection under Order VII, rule 11, C. P. C.
' The plaint as presented also challenges a notification issued under the Auqaf (Federal Control)
Act, 1976. Section 11 of the said Act lays down that any person claiming any interest in any Waqf property in respect of which a notification has been issued may make a petition to the District Court within whose jurisdiction the Waqf property is situate. Section 12 ibid lays down that appeal against a decision of the District Court made under section 11 shall be appealable to the High Court.
Again, section 13 makes the orders of the District Court or of the High Court as the case may be, as final. Section 21 bars the jurisdiction of other Courts to question the validity of anything done under the Act. Admittedly the rejected plaint challenges a notification issued under the Auqaf (Federal Control) Act, 1976 and a conjunctive reading of the afore-mentioned provisions of the said Act bars the jurisdiction of the civil Courts in the matter. The suit, therefore, was not only barred by time but also barred in view of the provisions of the Auqaf (Federal Control) Act, 1976 and consequently the plaint pertaining thereto was liable to rejection. No valid exception can, therefore, be taken in second appeal against the rejection of the plaint in the case in hand.
' I find no merit in this appeal which is dismissed in limine.