' SYED HAMID ALI SHAH, J.- The backdrop of the present controversy in the narrow compass is that Property No.20/516-A, situated in Bazar Kalan, Sialkot, City, was an evacuee trust property and was in possession of the father of the parties namely Allah Loke, being a tenant. On 1-12-1993, the Chairman, Evacuee Trust Properties Board, pursuant to the orders of this Court dated 24-7-1991 offered sale of the property to Allah Loke but before transfer of the property, Allah Loke died and the property was transferred to the petitioner vide sale-deed No.2587, dated 25-5-1999. The respondents who are also legal heirs of deceased Allah Loke being aggrieved of the transfer of the disputed property in favour of the petitioner, filed suit for cancellation of the sale-deed and for possession through partition of disputed shop in Bazar Kalan, Sialkot. During the pendency of the proceedings the petitioner moved an application under Order VII, rule 11, C.P.C., asserting therein that the property admittedly is of evacuee trust and civil Court has no jurisdiction to entertain and adjudicate upon the suit of the plaintiff by virtue of provisions of section 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. Learned trial Court vide order dated 25-1-2006 rejected the plaint under Order VII, rule 11, C.P.C. The respondent assailed the order of rejection of the plaint in appeal, which was accepted by the lower Appellate Court, vide order dated 24-5- 2006, resultantly, the case was remanded to the trial Court for its decision on merit. Hence, this petition.
2. The process was issued for service of the respondents but they could not be served as according to the report of the Process Server respondent No.l has proceeded abroad, while respondent No.2 after her marriage shifted from her last abode. Despite publication of citation in daily "Khabrain" in its print dated 15-2-2007, none has entered appearance, thus the* respondents were proceeded against ex parte vide order dated 13-3-2007. The ex parte arguments were heard.
4. (sic). Learned counsel for the petitioner contends that the property in dispute is an evacuee trust property and according to the provisions of section 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, jurisdiction of the Civil Court is barred in respect of any action taken by the authorities of Evacuee Trust Properties Board, taken in the exercise of any power conferred under Act, 1975. Learned counsel supported his contention by referring to the case of Evacuee Trust Property Board v. Mst. Zakia Begum and others (1992 SCMR1 1313). Learned counsel has further submitted that the Court below has failed to discuss and follow the judgment which the petitioner's learned counsel has cited at bar.
5. Heard, learned counsel for petitioner and record perused.
6. Learned lower Appellate Court has observed that there were two applications pending, one subject-matter of appeal under Order VII, rule 11 C.P.C. And other under Order VIII, rule 10 read with Order XVII, rule 3, C.P.C. Learned trial Court only decided application under Order VII, rule 11, C.P.C.
Without deciding other application under Order XVII, rule 3 C.P.C., thus has committed illegality, which amounts to condemning the parties unheard. The proper course of law in the administration of justice was not adopted. The lower Appellate Court had drawn its conclusion erroneously for the reason that when a Court comes to the conclusion that it has no jurisdiction, the only course available to the Court is to return the plaint for its presentation to the Court of competent jurisdiction or to reject the plaint, which course has been adopted in the instant matter. The Court when reached the conclusion that it had no jurisdiction, rightly rejected the plaint and such order of the learned trial Court was not open to exceptions.
7. Learned Appellate Court while deciding the question of jurisdiction observed that the controversy between the parties rests on commission of fraud and misrepresentation, qua the inheritance of the deceased father of the parties, thus the Civil Court had jurisdiction to entertain the suit. Learned Court while deciding the question of jurisdiction has failed to comprehend that the dispute is the sale of evacuee trust property by the Board to the. Petitioner. The transaction of sale is under the provisions of Evacuee. Trust Properties (Management and Disposal) Act, 1975 and the property in dispute is an evacuee trust property, thus it was the Chairman who could entertain and decide the dispute between the parties. Jurisdiction of the Civil Court was barred, as rightly held so by the learned trial Court. The Hon'ble Supreme Court of Pakistan is the case of Evacuee Trust Properties Board v. Mst. Zakia Begum (supra) has observed as under:- "6. From the above provisions it is quite clear and apparent that the Civil Courts did not have the jurisdiction in the matter. The appellant could have had recourse to the Chairman under section 8 of " the Act. Similarly, respondent No. 1 could/can apply under section 10 of the Act for relief. .The proceedings before the Civil Courts were coram non judice. The appeals are, therefore, allowed and the decrees of the Court below set aside, but the parties are left to bear their own costs."
8. The order passed by the Appellate Court is not legally sustainable as the same has been passed by ignoring the dictum of law laid down by the Hon'ble Supreme Court in the above cited case, thus the impugned order of the Appellate Court is set aside and that of the learned trial Court is upheld with no order as to costs.