CH. IJAZ AHMED, J.--- We intend to decide the captioned appeals by one consolidated judgment having similar questions of law. Brief facts out of which the first two appeals (Civil Appeals.
Nos.2037 and 2038 of 2001) mentioned above are that property in question is situated in Khasra Nos.5427 and 5428 at Abbot Road, Lahore. This property was shown in the Revenue Record as being owned by Muhammad Yousif predecessor-in-interest of respondents Nos.1 to 12 and Dyal Singh Trust Library in equal shares in the Jamah Bandi for the year 1938-39. The aforesaid Khasra Nos.
Were shown as being owned by the Dyal Singh Trust Library and the Tribune Trust in equal shares in the Jamah Bandi for the year 1941-42. Predecessor-in-interest of the aforesaid respondents Nos.1 to 12 filed application before the Deputy Custodian seeking declaration that he was entitled to one and a half share in the property in dispute and the same was not Evacuee Property. The Deputy Custodian rejected the application vide order dated 8-12-1960. Predecessor-in-interest of the respondents Nos.1 to 12 preferred appeal before the Additional Custodian who also dismissed the same vide order dated 24-4-1962. Thereafter revision was filed before the Custodian which was also dismissed vide order dated 10th September, 1962. Thereafter Constitutional Petition No,558 of 1963 was filed before the High Court of West Pakistan Lahore. The Division Bench of the learned High Court dismissed the same vide order, dated 12-6-1963. Thereafter Civil Petition No,212 of 1963 was filed before this Court in which leave was refused vide order, dated 1-5-1964 with the following observation:-- "We do not debar the petitioner from recourse to the Civil Court and the petitioner can file a suit to establish the right that he claims."
2. Predecessor-in-interest of aforesaid respondents filed suit for declaration along with permanent injunction against the present appellants on 2-9-1964 in the Court of Civil Judge, Lahore. During the pendency of the suit, suit property was transferred to respondents Nos.14 to 16 under the scheme for disposal of available urban properties. They were later on impleaded in the suit. The appellants filed written statement controverting the allegations levelled in the plaint including the preliminary objection to the effect "that property in dispute being evacuee trust property is exempted from the processes of this Honourable Court. Instant suit is thus not maintainable. Jurisdiction of this Honourable Court is also barred by law". Respondents Nos.14 to 16 also filed written statement, controverted the allegations leyellcd in the plaint and raised a number of preliminary objections including that the suit was barred by limitation and the principle of res judicata. The learned trial Court had framed the following preliminary objections:--
(i) Whether the suit is barred by limitation? OPD
(ii) Whether the suit is barred by res judicata? OPP
3. The learned trial Court vide its judgment, dated 31-3-1984 held that the suit was barred by time and not by res judicata. Respondents Nos.1 to 12 being aggrieved filed appeal before the District Judge, Lahore who dismissed the same vide judgment and decree, dated 4-4-1984. The learned First Appellate Court upheld the finding of the trial Court that suit was barred by time and also held that suit was barred by res judicata. Respondents Nos.1 to 12 being aggrieved filed Civil Revision No,662 of 1984 before the Lahore High Court, Lahore who accepted vide impugned judgment, dated 10-11-1999 and remanded the case to the learned trial Court with the direction that parties be allowed to lead evidence on Issue No,1 and thereafter the said issue shall be determined afresh in accordance with law without being influenced by any observation made in the impugned judgment. Evacuee Trust Board being aggrieved filed Civil Petition No,96/L of 2000 whereas respondents Nos.13 to 16 in Civil Petition No,96/L of 2000 also filed Civil Petition No,184/L of 2000 against the impugned judgment of the Lahore High Court. The aforesaid petitions were fixed before this Court on 23-10-2001 and the leave was granted in the following terms:-- "This Court has already granted leave to appeal in Civil Petition No,957 of 2000 to consider the following point:- "Whether in view of the judgments of this Court reported in 1992 SCM R 1313 and 1995 SCM R 1740, Civil Court has jurisdiction in respect of the property vested in Evacuee Trust Property Board."
' As identical question of law is involved in these cases, therefore, leave to appeal is also granted in these petitions. Office is directed to club these cases with the appeal arising out of Civil Petition No,957 of 2000."
4. Brief facts out of which the civil appeal mentioned at Serial No,3 are that respondents Nos.1 to 3 filed a suit for declaration with permanent injunction against the appellants in the Court of Senior Civil Judge, Larkana. The contents of plaint reveal that property in question is not evacuee property which was purchased by them from owner through registered deed dated 25-10-1986. The appellants filed written statement, controverted the allegations levelled in the plaint including number of preliminary objections along with objection that jurisdiction of Civil Court was barred by law. Out of the pleadings of the parties, the trial Court framed the issues including the issue of jurisdiction in the following terms:-- "Whether this Court has no jurisdiction?"
5. The learned trial Court decreed the suit vide judgment and decree, dated 31-3-1998. The appellants being aggrieved filed appeal in the Court of Additional District Judge, Larkana who dismissed the appeal vide judgment dated 26-8-1999. The appellant being aggrieved filed revision petition in the High Court of Sindh Circuit Court Larkana which was also dismissed through the impugned order dated 13-4-2000. The appellants being aggrieved filed Civil Petition No,957 of 2000 and leave was granted on 13-7-2001 in the following term:-- "Leave to appeal is granted subject to limitation to consider inter alia following point:-- ' Whether in view of the judgment of this Court reported in 1992 SCM R 1313 and 1995 SCM R 1740, Civil Court had jurisdiction in respect of the property vested in Evacuee Trust Property Board."
6. The learned counsel for the appellants submitted that all the Courts below had erred in law to entertain the suit of the respondents in view of bar of jurisdiction under the law by the virtue of section 14 of Evacuee Trust Properties (Management and Disposal Act) Act (XIII of 1975). The character and status of the property in question in the first two appeals was determined as Evacuee Property by the orders of the Deputy Custodian, Additional Custodian and Custodian which orders were upheld by the Division Bench of the learned High Court and this Court had not disturbed the finding of the Courts below in the earlier round of litigation with regard to the status and character of the property in dispute. They further submitted that learned Courts below had erred in law to decide the cases against the appellants in violation of law laid down by this Court in various pronouncements. In support of their contention, they relied upon the following judgments:- -
(i) Mst. Zakia Begum's case 1992 SCM R 1313; (ii) Iftikhar-udDin's case 2000 SCM R 1 and (iii) Ahmad's case 2004 SCM R 440.
7. They further urged that Deputy Administrator Evacuee Trust Property Lahore filed a petition under section 8 of the Evacuee Trust Property (Management and Disposal) Act, (XIII of 1975) for a declaration that property in question is an Evacuee Trust Property and for an order to take over its possession and assume administrative control of the same. Respondents Nos.1 to 12 had also filed written statement including the preliminary objections. The same is pending adjudication.
8. Learned counsel for the appellants submitted that property in question in appeal at serial No,3 was notified as evacuee property vide notification dated 16-1-1979, therefore, learned Courts below erred in law to entertain the suit of the respondents. He further submits that Administrator, Evacuee Trust Property Southern Zone Property had also taken its administrator control management and maintenance as evident from the aforesaid notification, dated 16-1-1979.
9. The learned counsel for the respondents submit that in the first two appeals, the matter was not finally decided by this Court as is evident from the order, dated 1-5-1964 wherein this Court did not grant leave to appeal holding that this was not a proper case for the exercise of writ jurisdiction.
Respondents were not debarred to approach the civil Court for redressal of their grievance. All the Courts below had not decided the question of bar of jurisdiction as is evident from the judgment of the Courts below. The trial Court as well as the first Appellate Court had non-suited the respondents on the principle of res judicata and barred by time which was not found good by the learned High Court in the impugned judgment and the case was remanded to the trial Court to decide the case afresh after recording the evidence on Issue No,1, therefore, appellants are not well within their right to raise preliminary objection that civil Court had no jurisdiction to take the cognizance of the matter in view of the provisions of Act XIII of 1975. He further submits that the present suit was filed by the respondents on 9-2-1964 whereas the Act No,XIII of 1975 came into force on 1st July, 1974. He further submits that Chairman, Evacuee Trust Board has no jurisdiction to determine the status of the property in question. He has only jurisdiction to take the cognizance of the matter in case the property in question having a evacuee character as evident from section 8 of the Act XIII of 1975. He further submits that appellants are debarred to raise objection of bar of jurisdiction of the civil Court in view of the observation of this Court in the earlier round of litigation vide order, dated 1-5-1964 wherein respondents were allowed to file civil suit and also objection of jurisdiction was raised before the trial Court which was rejected by the trial Court as depicted from order, dated 8-5-1979 which order was not challenged by the appellants before any higher forum on the principle of res judicata.
10. We have considered the submissions made by learned counsel for the parties and have perused the record . It is better and appropriate to reproduce the legislative history of the laws of the country dealing with the evacuee properties along with relevant provisions:---
(i) Pakistan Administration of Evacuee Property Ordinance, 1949. Section 2(2) defines evacuee and jurisdiction of civil Court was barred by section 34.
(ii) The Pakistan Rehabilitation Ordinance, 1956.
(iii) The Pakistan Rehabilitation Act, 1956 (Act XLII of 1956). This Act repealed the aforesaid Ordinance vide section 24. Section 18 specifically barred the jurisdiction of the civil Court.
(iv) The Pakistan Administrator of Eyacuee Trust Property (Act 1957) Act 12 of 1957. This Act repealed the aforesaid Act vide section 59. Jurisdiction of civil Court was also barred by virtue of section 41.
(v) The Displaced Persons (Compensation and Rehabilitation) Act, 28 of 1958. By virtue of section 16-A, the Chief Settlement Commissioner has power to prepare and frame one or more schemes for the administration, maintenance, management and disposal of property including in the trust pool qua property of trust etc. Section 25 barred the jurisdiction of the Civil Court. Under section 16- A scheme was prepared and issued by the Chief Settlement Commissioner Scheme of 1960.
Scheme was also prepared and issued on 20th July, 1971 under section 16-A(I) under the name and style Scheme for the Management and Disposal of Evacuee Trust Properties, 1971.
(vi) Evacuee Trust Property and Displaced Persons Laws (repealed Act) 1975 (Act 14 of 1975) came into force on 1st July, 1974. The aforesaid laws including other laws were repealed. The Evacuee Trust Properties Management and Disposal Act (XVIII of 1975) came into force on 1st July, 1974.
Relevant provisions are as follows:-- "8. Declaration of property as evacuee trust property.--- (1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(2) If the decision of the Chairman under subsection (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.
(3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, taken possession and assume administrative control, management and maintenance thereof: ' Provided that no declaration under subsection (2) or under subsection (3) shall be made or passed in respect of any property without giving the person having interest in that property a reasonable opportunity of being heard.
14. Bar of jurisdiction.-- Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act shall be granted or issued by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
11. In case the aforesaid provisions of law are put in a juxtaposition along with the date of filing of the suit by the respondents on 9-2-1964 clearly shows that in view of aforesaid provisions of law the civil Court has no jurisdiction to take the cognizance of the matter in view of the exclusive bar in view of provisions of the special laws mentioned above. It is pertinent to mention here that in the earlier round of litigation in the first two appeals, the Deputy Custodian, Additional Custodian and Custodian had determined the status of the property in question as evacuee property which was upheld by the Division Bench of the Lahore High Court and finding of the Tribunals below and the High Court were not disturbed by this Court. It is a settled law decision of Custodian on the status of the property in question having binding effect over the civil Court and the civil Court has no jurisdiction to take the cognizance of the matter as the law the laid down by this Court in various pronouncement. Reference can be made to the following judgments:--
(i) Muhammad Jamil Asghar's case PLD 1965 SC 698; (ii) S. Muhammad Hashim's case PLD 1970 SC 326; (iii) Begum Darab Sultana's case 1982 Pak. SC Cases 907; (iv) Nazir Ahmad's case 1988 SCM R 824; (v) Shaukat Hayat Jumani's case 1991 SCM R 580; (vi) Falak Sher's case 1987 SCM R 231; (vii)
Muhammad Ramzan's case NLR 1995 UC 43 and (viii) Abdul Aziz Khan's case 2000 SCM R 1371.
12. It is pertinent to mention here that the aforesaid judgments were rendered by this Court while interpreting section 41 of the Pakistan Administration of Evacuee Properties Act, 1957, relevant provisions of Displaced Persons Compensation and Rehabilitation Act, 1958 and relevant provisions of Evacuee Property and Displaced Persons Laws Repealed Act, 1975. It is admitted fact that during the pendency of the litigation between the parties Deputy Administrator (U) Evacuee Property, Lahore has filed references under section 8 of the Evacuee Trust. Property Management and Disposal Act XIII of 1975 for a declaration that property in question is an evacuee trust property and for an order to take over its possession and assume administrative control of the same and the respondents Nos.1 to 12 have also filed reply, controverting the allegations levelled in the petition along with preliminary objections. It is settled law that this Court has ample jurisdiction to take notice of subsequent events as the law laid down by this Court in Mst. Amina Begum and others v.
Mehar Ghulam Dastagir PLD 1978 SC 220. In view of the pendency of the reference before the Chairman, the civil Court cannot proceed in the matter and assume the jurisdiction in view the section 14 of the Act, 1975 as the law laid down by this Court in the aforesaid judgments relied upon by the counsel for the appellants. It is an admitted fact that the property in question in case at Serial No,3 was taken over by the appellants vide Government Gazette Notification dated 16-1-1979.
This notification cannot be challenged by the respondents before the civil Court in view of the aforesaid provisions of section 14 and the law laid down by this Court mentioned hereinabove. It is a settled law that order of Custodian cannot be interfered in constitutional jurisdiction unless it was passed without application of mind and without perusing the record or in violation of law. See Muhammad Munir's case 1993 CLC 478 and Mst. Safia Begum's case 1994 M LD 213. The Chairman Evacuee Trust Board has ample power to decide whether the property has a character of evacuee or not while exercising power under section 8 of the Act, 1975 as the law laid down by this Court in Khurshid Zaman's case 1999 SCM R 1007.
13. As the Courts below had wrongly assumed the jurisdiction in spite of the exclusive bar contained under the provisions of the special G laws, therefore, orders and judgments of the Courts below are without lawful authority or void. It is a settled law that no limitation runs against the void orders. In this view of the matter we condone the delay of one H day. It is also a settled maxim that pure question of law can be raised at any stage of the' proceedings as the law laid down by this Court in Haji I Abdullah Khan and others v. Nisar Muhammad Khan and others PLD j 1965 SC 690, Almas Ahmad Faiz's case 2006 SCM R 783. It is also a settled law that pleadings of the parties do not control or govern application of proper law to establish or prove against as law laid down K by this Court in Abdul Sattar's case NLR 1992 SC Judgment 279. The learned counsel for the respondents in the first two appeals have given lot of emphasis that civil suit was competent in view of observation. Of this Court. Mere reading the observation of this Court in order dated 1-5-1964 reproduced in para. 2 hereinabove clearly shows that this Court L did not debar the appellants from recourse to the civil Court. This does not mean that permission was granted by this Court in violation of exclusive bar contained under a special law. It is the duty of the civil Court to decide the matter in accordance with the law in view of Article 4 of the Constitution as law laid down by this Court in Utility Stores Corporation's case PLD 1987 SC 447. The other submission of learned IL counsel for the respondents in the first two appeals that question of jurisdiction was finally decided by the trial Court vide order, dated 8-5-1979 and the appellants had not challenged the same before any higher forum, therefore, order, dated 8-5-1979 had attained finality. It is pertinent to mention here that respondents had not attacked order of rejection of objection raised by the appellants qua the jurisdiction of the civil Court as evident from order, dated 8-5-1979 which clearly shows that objection was repelled by a separate order. The said order was not available even in the record of the lower Court, therefore, principle of res judicata is not attracted as law laid down by this Court in Muhammad Sadiq's case 1978 SCM R 130. Appellants filed written statement before the trial Court on 3-3-1984 raising preliminary objection that the jurisdiction of the civil Court was barred by law. Amended plaint was filed by the respondents on 9-12-2000. Written statement was also filed by the appellants by raising preliminary objections that the jurisdiction of this Honorable Court is barred by section 14 of Ordinance No,XVI of 1974 and that the plaintiff has remedy available to him under sections 16 and 17 of Ordinance by way of an appeal before the Administrator and revision before the Chairman. Appellants in Civil Appeal No,2038 of 2001 filed application under Order VII, rule 11 of C.P.C. That suit was liable to be dismissed on the we-known principle of res judicata. The respondents had not filed any rejoinder before the trial Court that the issue of bar of jurisdiction was finally decided by the trial Court on 8-5-1979. The aforesaid facts clearly show that no final order was passed against the appellants on the question of jurisdiction in view of bar exclusively by a special law. Even otherwise in the facts and circumstances of this case we are not convinced that order, dated 8-5-1979 had attained finality in any canon of justice.
14. For what has been discussed above, the aforesaid appeals are accepted and judgment of High Court in first two cases and judgments of all the Courts below in case mentioned at Serial No,3 are set aside. As mentioned above, it is an admitted fact that reference in the first two cases has already pending adjudication before the Chairman Evacuee Trust Board who is directed to decide the same without being influenced by the observation by this Court strictly in accordance with law as expeditiously as possible. It is pertinent to mention here that no reference is pending adjudication at Serial No,3, therefore, respondents Nos.1 to 3 are well within their right to file petition under section 8 of the aforesaid Act before the Chairman, Evacuee Trust Board who shall decide the same strictly in accordance with law as expeditiously as possible without being influenced by the observation of this Court.