' SARMAD JALAL OSMANY, J.- The Civil Revision impugns the judgment of the learned IVth Additional District Judge, Mirpur Mathelo, Passed in Civil Appeal No.88 of 2001, dated 8-12-2004, whereby the judgment and decree dated 7-12-2001 passed by the learned Senior Civil Judge, Ubaro in FCS No.233 of 1995 rejecting the plaint under Order. VII, rule 11, C.P.C. Was set aside and the matter remanded back for disposal according to law.
2. Briefly stated the facts of the matter are that respondent Muhammad Mossa (Since deceased) had filed FC Suit No.60 of 1973 before the Senior Civil Judge Ghotki, against the applicants and the revenue authorities praying for declarations to the effect that the revenue authorities are not entitled to dispose of the suit-land without first determining the claim of the plaintiffs as well as permanent injunction restraining the defendants from disposing of the suit-land without such determination. An application for amendment of the plaint was also filed by the plaintiffs to reflect the latest developments vis-^-vis the suit-land which had taken place after filing of the suit. The suit was based on the respondent/ plaintiff assertion that as they were the tillers of the suit land on Khasmokal Rights, the disposal of the land in open Katcheri to the applicant/defe.Ndant was unlawful. On the other hand, the applicants/ defendant had fully supported the action of the Revenue Authority and had also pleaded the bar of section 36 of the Colonization Act vis-k-vis the suit itself as the appeal lay to the Commissioner from the order of the Land Revenue Authorities. As observed above, the learned Sr. Civil Judge after putting on notice the counsel for the plaintiff to satisfy him regarding the maintainability of the suit rejected the plaint under Order VII, rule 11, C.P.C.
At the same time dismissing the aforementioned application as well. Being aggrieved by the judgment and decree, the plaintiffs filed Civil Appeal No.88 of 2001 before the learned IVth Additional District Judge, Mirpur Mathelo, who vide the impugned judgment allowed the same and hence this civil revision.
3. In support of this Civil Revision, Mr. Soomar Das, Advocate has firstly submitted that the learned Sr. Civil Judge had correctly rejected the plaint on two grounds viz. Being barred under section 36 of the Colonization Act, 1912 and consequently not maintainable under sections 42 and 56 of the Specific Relief Act. Per learned counsel prior to filing of the suit the respondent/plaintiffs had moved the Member Board of Revenue who had directed them to approach the Land Revenue Officer.
However, instead of doing so, the respondents/plaintiffs had filed the suit. On the other hand, the applicants/defendant had participated in the Open Katchery and got the land for which the respondent/plaintiffs remedy lay before the Revenue Authorities since under section 36 of the Colonization Act, 1912, the jurisdiction of the Civil Courts is barred where the impugned order disposes of Government land by the Collector or by the Board of Revenue or any other Revenue Officer. Per learned counsel, under section 10 of the Colonization Act, the Provincial Government is to issue a statement of conditions under which it is willing to grant land to the tenants. Accordingly this was done by the Government of Sindh Land Utilization Department under Notification No.KBI/1/ 30/72/7179/7784 dated 21-11-1972 vis-h- vis state land in the Kotri, Guddu and Sukkur Barrage Command Areas. Hence, per learned counsel, the disposal of the suit lands was published in the schedule which fixed the date and time for this purpose in open assembly. However, the respondent/ plaintiffs failed to assert their claim thereat but instead filed the suit. Even otherwise, per learned counsel, the order whereby the land was granted to the applicants/ defendants is subject to the revenue hierarchy and consequently the suit barred under section 36 of the Colonization Act. For this submission he relied upon Muhammad Azam v. Bashir-ud-Din (1988 MLD 1341), Muhammad Naeem v. Province of Punjab (2003 YLR 52), Alam Sher v. Muhammad Sharif (1998 SCMR 468), Muhammad Ishaque v. Abdul Ghani (2000 CLC 159) and Abdul Ghaffar v.
Government West Pakistan (PLD 1963 Karachi 215).
4. Learned counsel has further submitted that the suit is also barred under section 79 of the C.P.C.
Since the Province of Sindh was not made party though it was necessary one in the circumstances of the case in support of his submissions he has relied upon Secretary, B&R Government of Pakistan v. Fazal Ali Khan (PLD 1971 Kar. 625) Tahir A. Khan v. C.B.R. (2003 YLR 196).
5. Finally learned counsel has submitted that under section 11 of the Sindh Revenue Officers jurisdiction Act suits cannot be entertained against Revenue Officers without exhausting the remedy available under the Revenue hierarchy within the period of limitation. Hence, per learned counsel, the plaint was correctly rejected under Order VII, rule 11, C.P.C. In support of this submission he has relied upon: Zia ur Rehman Alvi v. Allahabad Cooperative Housing Society (PLD 1995 Kar.
399), Pakistan Railways v. KDA (PLD 1992 Kar. 71), Muhammad Saleem v. Nuzhat Jehan Begum (2005 SCMR 1070), Hawaldar Sawar Khan v. Province of Sindh (1998 CLC Kar. 383) and Civil Aviation Authority v. M/s Data International (PLD 1993 Kar. 700).
6. On the other hand, Mr. Mukesh Kumar appearing for the plaintiffs submitted that insofar as section 79 of the C.P.C. Is concerned regarding non-joinder of Province of Sindh, such application was filed and allowed by the learned Civil Court but the amended title could not be filed. This was unfortunately not brought to the attention of the learned Civil Court. In any event, per learned counsel, this was a curable defect and hence could not be made the basis of rejection of the plaint under Order VII, rule 11, C.P.C. In support of this submission he has relied upon Rauf. B. Kadri v. State Bank of Pakistan (PLD 2002 SC 1111), Ministry of Works, Islamabad v. Mrs. Khalid Nazir (1991 CLC 563), Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382).
7. Secondly, per learned counsel, despite status quo given by the Civil Court in the year 1973, the land was given to the present applicants by the Colonization Officer upon which the former were joined as parties in 1984 and the amended plaint filed. Then application for amendment of the plaint was filed which was dismissed along with the rejection of the plaint. Per learned counsel the impugned judgment passed by the learned appellate Court does not suffer from any illegality or other legal defect since it is settled law that a civil suit should be decided on merits and nor dismissed on mere technicalities as has been done in the present case. In support of this submission he has relied upon: Muhammad Usman Qayyum v. BISE (PLD 2004 Lah. 448), Sharaf Faridi v. The Federation of Islamic Republic of Pakistan (PLD 1989' Kar. 404) and Mst. Ghulam Bibi v.
Sarsa Khan (PLD 1985 SC 345).
8. Insofar as section 36 of the Colonization Act is concerned, learned counsel has submitted that before filing the suit the respondents has approached the Board of Revenue for allotment of land on Kashmokal rights who had ordered as long ago as on 23-12-1967 that the Project Director should determine the claim. However, this was not done and the suit-land was included in schedule for disposal in open auction. Consequently, the respondent had no option but to file the suit since no order was passed by the Member Board of Revenue on their application. In support of this submission he has relied upon: Muhammad Zafar v. Yousaf Ali (2003 CLC 1922) and Shahab-ud- Din v. Mst. Mariam Bibi (1995 MLD 45).
9. Mr. G.A. Shahani, Additional Advocate-General has supported the arguments of Mr. Mukesh Kumar on the ground that per settled law where amendment in the plaint would remove the technical flaws then it would be in the interest of justice to grant such amendments rather than rejecting the plaint. Further that in the facts and circumstances of the case, the bar contained in section 36 of the Colonization Act would not be applicable. He has referred to Hamid Hussain v.
Government of West Pakistan (1974 SCMR 356) and Mian Muhammad Latif v. Province of West Pakistan (PLD 1970 SC 180).
10. I have heard both learned counsel as well as learned Additional. Advocate-General and my conclusions are as follows.
11. It would be seen that the case of the respondent/piaintiffs before the Civil Court was that although they had applied to the Revenue Authorities for adjudication of their claim on Khasmokal rights, this was never done despite directions issued by the Member Board of Revenue on 29-9- 1967. To the contrary, the suit-land was put up for disposal in open auction and hence the suit was filed by the respondents/plaintiffs with the following prayers:--
(i) Declaration that the colonization office is not entitled to dispose of the suit-land without first determining the pending claim of the petitioner according to the dictum made in the order dated 29-9-1967.
(ii) Permanent injunction thereby restraining the defendants from disposing of the suit-land without determining the claim of the plaintiffs.
(iii) Costs of the suit.
(iv) Any other relief which may be admissible under the circumstance of this case.
' During the pendency of the suit, the suit-land was granted to the applicants/ defendant despite a stay order in the field and hence an application was filed by the respondent/plaintiffs for amendment of the plaint in order to reflect the current position. However, this application was dismissed and the plaint also rejected under Order VII, rule 11 as being barred under section 36 of the Colonization Act.
12. The aforementioned section reads as follows:-- "Jurisdiction of Civil Court barred as regards matter arising under the Act.---A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which the (Provincial Government) (Board of Revenue) or Collector or any other Revenue Officer exercise any power vested in it or in him by or under this Act."
It would be seen that such exclusive jurisdiction provisions in any law are subject to judicial proceedings provided that the order complained of is either unlawful, without jurisdiction coram non judice or passed in the absence of the aggrieved party. In this respect, reference can be made to Abbasia Cooperative Bank and another v. Hafiz Muhammad Ghaus and 5 others (PLD 1997 SC 3), M. Jamil Asghar v. Improvement Trust (PLD 1965 SC 698), Abdul Ala Maudoodi v. Government of West Pakistan (PLD 1964 SC 673), University of Dacca v. Zakir Ahmed (PLD 1965 SC 90), Basharat Ali v. Director Excise and Taxation (1997 SCMR 1543). In the present case, the only grievance of the respondent/plaintiffs is that the Revenue Authorities without determination of their pending claim have included the suit-land in the Schedule for the purpose of auction and in fact finally granted the same to the applicants/defendants. In these circumstances, the respondents/plaintiffs should have asserted their rights before the open assembly since under the statement of conditions above referred to, haris, including ones holding Khasmokal rights are to be considered while granting of government lands. In fact, the respondent/ plaintiffs have themselves asserted in the plaint of the suit that they had previous Khasmokal rights to the suit-land: In these circumstances I am of the opinion that the bar contained in section 36 of the Colonization Act as well as section 11 of the Sindh Revenue Officers Jurisdiction Act is fully applicable since it cannot be said that the action of the Revenue Authorities of including the suit-land in the schedule for the purpose of grant/auction is either unlawful, coram non judice or without jurisdiction or, for that matter undertaken without hearing the respondents/plaintiffs since public notice was issued regarding disposal of the suit-lands which they ignored. In any event the impugned action is again subject to revision/appeal before the Revenue Authorities.
13. Insofar as the cases relied upon by Mr. Mukesh Kumar are concerned; under section 36 of the Colonization Act, in my opinion, the same are distinguishable. In the case of Hamid Hussain v.
Government of West Pakistan (supra) it was held that jurisdiction of the civil Court would not be barred where patently the action taken by the Revenue Authorities was unlawful. Similarly, in the case of Muhammad Zafar. Yousaf All (supra) a learned Single Judge of the learned Lahore High Court came to the conclusion that where the very action itself of the authority to pass the order under the Colonization is challenged, section 36 would not be a bar to such suits where no hearing was given to the aggrieved party. In Muhammad Latif v. Province of West Pakistan (supra) it was held that where the impugned order is a nullity in the eyes of law then a suit would not be barred under section 11 of the Sindh Revenue Officers Jurisdiction Act. Again in Shahab-ud-Din v. Mst.
Mariam Bibi and others (supra) again it was held that where the executive authority acts in excess of jurisdiction or without jurisdiction a civil Court being a Court of general jurisdiction is empowered to examine the vires of such orders. In this case the orders were passed without hearing the aggrieved party. As observed above, such are not the facts of the present matter.
14.. As I have found that the suit filed by the respondents/plaintiffs was barred by law, and therefore, the plaint was correctly rejected by the learned civil Court, there is no need to discuss the other points argued at the bar as also the connected cases. In view of the foregoing, this revision application is allowed, the judgment and decree of the learned appellate Court is set aside and that of the learned civil Court is restored. However, it may also be observed that the respondent/plaintiffs would be free to resort to any other remedy under the law. Revision application stands disposed off. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.