' SYED JAMSHED ALI, J.--- The judgment, dated 26-3-2002 of the learned Peshawar High Court has been assailed in this petition which arises out of the following circumstances.
2. On 5-4-1995, petitioners filed suit against the respondents claiming a declaration that they were owners in possession of land measuring 11 Kanals and 3 Marlas. Noor-ur-Rehman, respondent No,1, has nothing to do with the said land and the order of the allotment dated 19-6-1993 passed by the Deputy Land Commissioner in his favor followed by Mutation No,22, dated 28-10-1993 was based on fraud, collusion, void and inoperative qua the rights of the petitioners. The basis of their claim was allotment of the said land in favor of Mehboob, their predecessor under MLR 64 of 1959.
3. Respondent No,1 contested the suit and inter alia, raised the objection that the civil Court had no jurisdiction. Vide order, dated 24-10-1995, the plaint was rejected by the Civil Judge, Mardan on the ground that the suit was barred by law. The learned first Appellate Court, however, set aside the order of rejection of the plaint on the ground that civil Court alone was competent to determine the question of title between the parties. Accordingly, the case was remanded to the learned trial Court. This remand order was challenged by respondent No,1 in Civil Revision No,296 of 1996 which was allowed by the learned High Court vide judgment dated 1-4-2002 with the finding that under paragraph 26 of the learned Land Reforms Regulation, 1972 (MLR 115), the civil Court had no jurisdiction. The judgments of the Peshawar High Court in Central Government through the Income Tax Officer, Dera Ismail Khan v. Sher Muhammad Khan and others PLD 1971 Pesh. 153; Muhammad Amin Khan and 6 others v. The Central Government of Pakistan PLD 1993 Pesh. 60 and Shah Nawaz v. Umar Daraz and 9 others 1999 CLC 1883 were relied upon by the learned High Court.
4. The learned counsel for the petitioners submits that question of jurisdiction was essentially a mixed question of law and fact and could not have been summarily answered.. Since the plaint disclosed a triable issue, it could not have been summarily rejected. His main thrust of the argument is that since the land in dispute was granted to the predecessor-in-interest of the petitioners under MLR No,64 of 1959, it never formed part of the pool under Land Reforms Regulation, '1972 (MLR-115) to be dealt with there under by any functionary constituted by the said Regulation. He submits that bar of jurisdiction of civil Court will only be attracted if the order impugned before the civil Court is shown to have been passed in accordance with law. In case of absence of jurisdiction, no immunity could be claimed. He placed reliance on Yousaf Ali v.
Muhammad Aslam Zia PLD 1958 SC 104 and Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671.
5. Mr. Abdul Sattar, Advocate Supreme Court who has appeared for respondent No,1, on the basis of judgments noted by the learned High Court and Muhammad Hussain and 6 others v. Malik Allah Ditta and 4 others 1993 SCMR 1469, submits that bar of jurisdiction contemplated by paragraph 26 of the Land Reforms Regulation (MLR-115) has correctly been applied. He has also disputed the validity of the allotment in favor of Mehboob, predecessor-in-interest of the petitioners. Although he had reluctantly conceded that validity of the documents is a question that could only be determined after recording of evidence.
6. The submissions made have been considered. It will not be out of place to reproduce para.26 of Land Reforms Regulation (MLR-115)
"Bar of jurisdiction.--- No provision of this Regulation or of any rules or orders made thereunder shall be called in question in any Court including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine.
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceedings before the Commission or before any officer exercising any power or discharging any function under this Regulation or the Rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer." (Underlining is ours to supply emphasis).
7. A perusal of the above paragraph shows that immunity under paragraph 26, will be available only to those orders which have competently been passed under the aforesaid Land Reforms Regulation. A In case it is ultimately found that land surrendered under Martial Law Regulation No,64 of 1959 stands utilized and was no more available to be dealt with under Land Reforms Regulation No,1972 (MLR-115), the order of allotment, dated 19-6-1993 in favor of respondent No,1 will clearly fall beyond the scope of the aforesaid Regulation. And, will hardly be an order passed "thereunder" to be exposed to the bite of para.26 aforesaid. It may also be noted that under para.28 of the Land Reforms Regulation, 1972 "a grantee of land under the repealed Regulation shall be discharged from all liability in respect of any instalment under paragraph 19 of the said Regulation".
"In case a valid allotment in favor of the predecessor-in-interest of the petitioner is established, the import of para.28 of the Regulation may be perfect answer to the untouchability of Land Reforms Regulation No,1972 (MLR-115). The bar of jurisdiction contemplated by a statute came under consideration before this Court in the case of Abdul Rauf (supra) and the following observations of a learned five Members Bench of this Court illustrate the principle:--- "We are quite familiar with the words "under the Act" or "under Chapter..." No order is an order passed "under the Act" if it was not passed in exercise of powers granted by the Act and was, therefore, without jurisdiction. In a particular Act the words "under the Act" or "under Chapter..." may not appear and words of similar import may be used. But whatever the phraseology employed, any provision in an enactment saying that orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction."
' Although the aforesaid case arose out of Frontier Crimes Regulation (No,III of 1901) yet a similar ouster clause in the aforesaid law was under examination. We may observe here that an order passed under the Act or an "order passed thereunder" used in Land Reforms Regulation No,1972 (MLR-115) are synonymous. The question also came up before the learned Lahore High Court in Kassu Khan alias Ghulam Hassan Khan v. Muhammad Amin and 6 others PLD 1994 Lah. 24 in which the sweep of para.26 of Land Reforms Regulation No,1972 (MLR-115) was considered:-- "The civil Court enjoys plenary jurisdiction under section 9 of the C.P.C. Therefore, it was competent to entertain and decide the suit for permanent injunction filed by Allah Bakhsh deceased/plaintiff.
As discussed above, the order, dated 17-11-1967 whereby the earlier order, dated 25-6-1959 was reviewed, was no order in the eye of law. It is non-speaking and arbitrary order and does not even indicate that the earlier order, dated 25-6-1959 was being recalled or set aside."
8. The civil Court, as a Court of plenary jurisdiction, is competent to assume initial jurisdiction to examine whether a Tribunal of special jurisdiction has acted within the limits set out by the statute creating it and if the order brought under challenge before the civil Court is passed within the four corners of the statute only then the clause ousting jurisdiction of the civil Court will become operative. In case of absence or excess of authority, the order passed by a functionary under a special law could hardly be said to have been passed under the Act to claim blanket protection.
9. The judgments relied upon by the learned Peshawar High Court have been examined. In the case of Federal Government (supra), the bar of Income Tax Act, 1922, was enforced against maintainability of a civil suit. In the case of Muhammad Amin Khan (supra), the question involved was as to the bona fides a transaction under para.7 of the Land Reforms Regulation No,1972 (MLR- 115) and the observation, by the learned Peshawar High Court was that it was within the competence of Land Commission Authorities to determine. In case of Shah Nawaz (supra), the first allottee under the Land Reforms Regulation No,1972 was aggrieved of the allotment of the same land to another person which was assailed in a civil suit. The observation of the learned Peshawar High Court was as follows:-- "Thus, the grant of land which vested in the Government under the Regulation is not an act which could be described as without jurisdiction without lawful authority or coram non judice."
' However, in the instant case, the very applicability of the Land Reforms Regulation No,1972 (MLR- 115) is in question.
10. For what has been stated above, this petition is converted into appeal, is allowed, the impugned judgment of the learned Peshawar High Court is set aside restoring the order of the first Appellate Court. The case stands remanded to the learned civil Court for trial and disposal in accordance with law. The case will be decided on its own merits on the basis of the evidence produced in the case uninfluenced by any observation made in this judgment.