1. GHULAM MUSTAFA MUGHAL, J.---An order passed by the Additional District Judge, Dudyal, on 21- 3-2005 whereby accepting the appeal of Shakeela Begum, respondent herein, the case has been remanded for decision on merits, Is challenged through the instant revision petition.
2. Precise facts forming the background of the controversy are that Shakeela Begum and others, plaintiffs/respondents herein, brought a suit for declaration' against the defendants/petitioners, in the Court of Civil Judge, Mirpur which was subsequently transferred to Civil Judge, Dudyal on 7-5- 2002. It was averred that land comprising Khewat Nos.11/11 and 12/12 measuring 85 Kanals, 15 Marlas situated in village Amb Tehsil Dudyal is in joint ownership of the plaintiffs and defendants, however, at present the same is in sole possession of plaintiff No.4. It was further averred that defendants Nos.1 to 3 filed an application for partition of the said property and plaintiff did not object the same.
3. It was claimed that the whole proceedings were conducted by defendant No.4 in complete derogation of relevant procedure and without hearing. It was prayed that orders of defendants Nos.4 to 7 passed on 1-6-1996, 13-1-1997, 4-8-1999, 20-5-2000 and 1-1-2000 may be declared bad in law, without having any legal effect.
4. The suit was resisted by the. Defendants by filing written statement. Besides parawise reply, the defendants also claimed dismissal of the suit on the grounds of estoppel, res judicata, limitation and jurisdiction. The learned trial Court framed issues on 11-10-2004. It appears from the record .That initially the case was fixed for evidence but later on the parties were heard on issue No.10 and the suit was dismissed for want of jurisdiction. On appeal, the learned Additional District Judge opined that civil Court has the jurisdiction and remanded the case for decision on merits.
5. Mr. Mumtaz Hussain Chaudhry, the learned Advocate appearing for the respondents, raised a preliminary objection regarding the maintainability of the revision and contended that remand order was passed under Rule 23 of Order XLI of the Code of Civil Procedure which was appealable under rule 1(u) of Order XLIII. Of the Code, hence, in presence of right of appeal, present revision is not maintainable. The learned Advocate submitted that where an appeal is provided, revision does not lie, as is visualized by section 115 of C.P.C. It was requested that the revision may be dismissed without adverting to its merits.. Reference was made to PLD 1970 SC 506.
6. Ch. Muhammad Sabir, the learned Advocate appearing for petitioners, has controverted the argument advanced on behalf "of respondents and submitted that impugned order was passed under section 104 of C.P.C. On appeal. Under subsection (2) of section 104, no further appeal was competent from an order passed in appeal under the said section, therefore, instant revision has competently been filed. The learned Advocate argued that assuming for the sake of arguments that the revision was not competent, even then this Court has inherent jurisdiction to treat the same as appeal. The learned Advocate, in support of his submissions placed reliance on the following cases:
(1) Muhammad Yasin v. Mst. Hassan Jan and 15 others PLD 1982 SC (AJK) 85; (2) Abdul Rashid v.
7. Gulzar 1995 SCR 307; (3) Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; (4)
8. Muhammad Hanif v. Muhammad and others PLD 1990 SC 859; (5) Fazal Ellahi and 5 others v. Alam Din PLD 1979 SC (AJK) 109 and (6) Fazal Elahi v. Jalal Din and 17 others PLD 1989 (H.C. AJK) 42.
9. Arguing on merits of the case, the learned Advocate submitted that partition proceedings were concluded by the Revenue Assistant in the light of admission of the respondents as is evident from the impugned order and now they cannot challenge the validity of the proceedings on account of estoppel and acquiescence. The learned Advocate argued that proceedings conducted by the Revenue Officers even otherwise cannot be challenged in civil Court under section 172(XVIII) of the Land Revenue Act, 1967. Thus, according to the learned Advocate, the order of the Civil Judge, Dudyal is unexceptional and remand by the Additional District Judge is illegal and is a nullity in the eye of law.
10. Mr. Mumtaz Hussain Chaudhry, the learned Advocate for the other side controverted the arguments advanced on behalf of the petitioners and submitted that the whole proceedings have been conducted by the Revenue Assistant in total derogation of law, hence, are mala fide and such decision can be challenged in Civil Court especially when the question of title of the parties. Is involved. The learned Advocate maintained that the Civil Courts being final Arbitrators do possess the jurisdiction to determine as to whether any proceedings have been taken strictly in accordance with the procedure provided by the special Act or the authority has travelled beyond the parameters and scope of the said Act. The learned Advocate in this regard placed reliance on the following precedents:--
(1) Ali Ahmed v. Mst. Ghulam Zohra PLD 1987 Quetta 189; (2) Muhammad Akhtar v. Abdul Aziz and 2 others PLD 1996 Lah. 232; (3) Muhammad Sharif and another v. Mst. Rasul Bibi and others 1981 CLC 533; (4) Syed Shah v. Khuda Bakhsh known as Maulvi Shah and others PLD 1954 Lah. 606; (5) Kh.
11. Akbar's case 2000 SCR 211.
12. Before proceeding further, I would like to discuss the case-law referred to and relied upon by the learned Advocates representing the parties.
13. Facts of Muhammad Yasin's case were that a suit was dismissed for abatement as a whole by the trial Court. On appeal the District Judge remanded the case for decision on merits. The order of the District Judge was further challenged before this Court in appeal which was accepted partly and it was held that plaintiff's suit abated to the extent of deceased's share only. On further appeal the apex Court concluded that the order of abatement was passed by the trial Court under Order XXII, rule 9, which was appealable under Order XLIII, rule 1(k), C.P.C. It was held, that the impugned order therein was passed under section 104 of the Code and the same was not open to further appeal, hence, second appeal before the High Court was not maintainable. The apex Court held that defect' being procedural, was not fatal so much so to invalidate the decision. From the observation of their Lordships, it appears that a revision can be treated as appeal and appeal vice versa. The same view was reiterated in Abdul Rashid's case PLD 1984 SC 164; PLD 1987 SC 139; 1994 SCMR 1555.
14. This view further lends support from Muhammad Aslam's case 1991 CLC 360.
15. A different view was taken in the authorities referred to and relied upon by Mr. Mumtaz Hussain Chaudhry, Advocate.
16. The contention of Ch. Muhammad Sabir, that the remand order is not appealable in view of subsection (2) of section 104 of the Code of Civil Procedure, in the circumstances of the case, is devoid of any force. Section 104 of the C.P.C. Is restrictive in character and is applicable only to the orders mentioned in the section where a decree has been prepared by the trial Court or the impugned order has force of the decree, then clause (2) of this section will have no application and appeal would be competent if the impugned order is covered A by Order XLIII(1)(U) of the C.P.C. A perusal of clause (i) and subsection (2) of section 104 sufficiently clarifies that second appeal would also be competent even from the orders if the same is allowed under some other Rule. An appellate Court can pass the remand order in two eventualities i.e. Under rule 23 of Order XLI or under rule 25 of the said Order. Remand order passed under rule 23 is appealable under Order XLIII rule 1(U), whereas remand order passed under rule 25 is revisable. A reference can be made to Haridas and another v. Banshidhar and another AIR 1962 Rajasthan 57 (FB), wherein it was opined that an order of remand made under Order XLI, rule 23, C.P.C. Has an independent existence and it any person is aggrieved thereby, he has no other alternative but to appeal from it because if he does not appeal, he will not be heard later on. The same view was taken in Gokul Prasad v. Ram Kumar AIR 1922 All. 254 and Firm Shaw Hari Dial and Sons, Madras through H.R. Bagdy v. Messrs Sohna Mal Bell Ram through Arjan Das AIR 1942 Lah.
95. The learned trial Court in the present case has dismissed the suit for want of jurisdiction and has drawn up a decree. Subsection (2) of section 104, therefore, is not at all applicable. The appeal before Additional District Judge was filed under section 96, C.P.C. Second appeal before this Court was competent under section 100 read with Order XLIII(1)(U). The objection of the learned Advocate for the respondents is, therefore, upheld.
17. Now the question is as to whether the present revision petition should be treated as appeal.
18. Keeping in view the circumstances of the case and interest of justice, I am inclined to convert the same into appeal and is accordingly ordered. 1991 CLC 360.
19. Now, I proceed to determine as to whether the trial Court has rightly dismissed the suit for want of jurisdiction. It may be observed that Civil Court, being the Court of ultimate jurisdiction, is competent to try all the suits of civil nature except barred expressly or impliedly. It is well-settled law that ouster of jurisdiction of Civil Court in respect of the suits of civil nature is not to be readily interfered. Acts of executive or quasi-judicial tribunals can be challenged before a Civil Court if it c appears that assumption of jurisdiction by such forum is violative of law or they had acted in violation of provisions of the statute which conferred jurisdiction on them or on the ground of mala fide. However, jurisdiction exercised and orders passed by such forums, under special law are immuned from challenge if they are passed strictly in accordance with provisions of that Act. In Zafar-ul-Ahsan's case PLD 1960 SC 113, the apex Court of Pakistan observed as under:-- "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute. These contentions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an Appellate Authority is provided by the statute the omission or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."
20. PLD 1965 SC 671 it was opined that no order can be said to have been passed "under the Act" if it was not passed under the powers conferred by the Act. Facts of that case were that a civil suit filed on behalf of plaintiff therein was dismissed for want of jurisdiction in view of bar contained in sections 10 and 60 of the Frontier Crime Regulations. A learned Judge of the then West Pakistan High Court remanded the case for trial in accordance with law, holding that the Court had the jurisdiction to try the suit. Appeal against the decision was filed before the apex Court of Pakistan which was dismissed. The apex Court, at page 674 of the report observed as under: -- "Civil Courts have jurisdiction as provided in section 9 of the Civil Procedure Code to try all suits of a civil nature excepting those the trial of which is expressly or impliedly barred. We have already reproduced the grounds of attack- on the decree and the award. The, substance of those grounds is that the proceedings under the .Frontier Crime Regulation ending in the decree of 15th March, 1954, were without jurisdiction. The question as to whether the act of an executive or Administrative Officer or a quasi-judicial or judicial Tribunal is without jurisdiction, illegal and not binding on a, party, being a matter of a civil nature; is always to be decided by the Civil Courts except to the extent to which such jurisdiction may have been taken away. The question for consideration before the Court was whether this jurisdiction had been taken away by some provision."
21. Again at page 675 it was observed:--- "However, as in the case of section 10, section 60 will also apply only where an order is passed with jurisdiction. 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 saving 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. Of course it is open to the Legislature to provide that not only acts done under an enactment, but even acts which purport to be done under an enactment will be immune from challenge. Such a provision will however, be a very exceptional one, a provision which we are likely to come across only during a national emergency.
22. The , decision of the question whether the Civil Court had jurisdiction in the present case would depend on whether the impugned orders and proceedings were without jurisdiction. There is in this case an attack on the, proceeding on the ground of mala fide, too. A' mala fide act is by its nature an act without jurisdiction: No Legislature when it grants power to take action or pass an order contemplates .a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."
23. The same view was taken in 1997 MLD 1309. The relevant observation is as under:-- "Judicial' review of order passed in colourable exercise of powers/excess of authority. Acts done by Revenue functionaries in arbitrary manner, or contrary to settled principles of dispensation of justice is permissible. ,Such acts cannot be protected under section 172 of the Land Revenue Act.
24. Civil Courts being Courts of ultimate jurisdiction wherever it is found that any Authority while exercise its jurisdiction has acted contrary to law, in excess of authority or without jurisdiction and/or mala fides."
25. PLD 1983 Quetta 52 (FB) it was concluded: -- "4. The first contention raised by the learned counsel hardly needs much discussion as the order of the Senior Civil Judge, Quetta to the effect that section 172 of the Act of 1967, constituted bar to the filing of suits to, challenge the action of the Revenue Authorities, has since been set aside by the District Judge, Quetta. In order to clarify the legal position suffice it to say that section 53 of the. Act of 1967, itself creates a right in favour of an aggrieved person to approach the Civil Court for declaration of his right under section 42 of the Act of 1877. The scope of section 172 of the Act of 1967, is entirely different. It only excludes the Civil Courts from taking in hand the functions assigned to the Revenue Courts, as also the questioning of their methodology adopted for the discharge of such functions. The function of the Revenue Courts is to prepare the Revenue Records in the light of the evidence with regard to one's title or interest, but the finality is attached to the orders of the Civil Courts who shall determine such rights if any dispute arose in that regard. The view of the Senior Civil Judge was erroneous and was rightly set aside by the District Judge."
26. At page 60 of the report the Honourable Division Bench observed as under:- "8. In the light of above, we are of the view that the Courts are only such organs of the State which administer justice under the guidance of procedural laws as to the conduct of the proceedings as well as Evidence. Since such methodology helps the Court in administering justice in accordance with law, therefore, all other bodies which have a free hand in the matter of deciding disputes are not Courts.
9. Adverting to the section 42 of the Act of 1877 against it shall be seen that the right conferred upon a person by this provision of law is of great value and importance and it cannot be left in the hands of persons not judicially trained and incapacitated to impart justice stricto senso. The functionaries under the Ordinance I of 1968, cannot be placed any higher than this. Furthermore since the purpose was that such disputes should be decided by Court alone, therefore, in section 42 of Act of 1877, we find no words to suggest of any other forum. This jurisdiction attains all the more importance when decisions of Revenue Authorities are under challenge."
27. This view further lends support from Khawaja Muhammad Akbar's case wherein section 172 of the Act received attention of the apex Court on the ground of jurisdiction with reference to section 53 of the Act,. It was opined that section 53 of the Land Revenue Act gives right to a person, considering himself aggrieved by an entry in a record of rights or any periodical record to which he is in possession, to institute a suit for declaration under Chapter VI of the Specific Relief Act, 1877. In Khuda Bakhsh's case, referred to hereinbefore, a Division Bench of the Lahore High Court also held that Civil Court has the jurisdiction to entertain a suit based on the allegations of want of notice to plaintiff and collusion amounting to fraud between the Revenue Officers and defendants. The same view has been followed in Muhammad Shareef's case, referred to and relied upon by the learned Advocate for the respondents.
28. This view lends further support from the following authorities:--
(1) Chajju and others v. Dallu and another AIR 1919 Lah. 9 (2) Tirath Ram and others v. Mt. Nihal Devi AIR 1931 Lah. 664.
29. The upshot of the above discussion is that finding no force in this revision it is hereby dismissed.