This petition is directed against the order dated 10. u.2006,. whereby an application made by the petitioners under Order VII, Rule 11 C:P.C. was dismissed.
2. The back-drop of the controversy is that the respondent filed a suit fore. declaration and damages for a sum of Rs. 87,42,90,000/-. The petitioners/ defendants moved an application under Order VII, Rule 11 C.P.C. for rejection of the plaint, pleading embargo of Section 48-A of the University of the Punjab Act, 1973, and submitting that there is complete ouster of jurisdiction of the Courts of plenary jurisdiction, after contest the application was dismissed. It is also worth-while to mention here that the defence of the petitioners/defendants was struck off earlier.
3. Learned counsel for the petitioner by placing reliance on Section 48-A of the University of the Punjab Act, 1973, which reads as:-- "All acts done, orders passed or proceedings taken by the University in good faith shall be final and shall not be called in question in any Court by a suit or otherwise". contended that being a special law the Courts of plenary jurisdiction cannot take cognizance of the matter and adjudicate upon it, the application under Order VII, Rule 11 C.P.C. could be made at any stage notwithstanding the right of striking of defence. Learned counsel for the petitioner placed reliance on Javed Shuja Versus Auqaf Department and others (1995 C.L.C; 1263).
Learned counsel for the respondent on the contrary submitted that the provisions of Section 48-A of the University of the Punjab Act have been misconstrued by the petitioners, the ouster of jurisdiction is not complete and mala fide actions can be questioned into by the Courts of plenary jurisdiction, he has, therefore, supported the impugned order. Learned counsel for the respondent placed reliance on The Registrar, University of the Punjab, Lahore and another Versus Rana Asghar Ali alias Muhammad Asghar (1993 S.C.M.R. 1681), The University of the Punjab, Lahore through Registrar versus Muhammad Aslam Bora, Advocate and another (P.L.D. 1988 Lahore. 658) and Mian Muhammad Latif Versus Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 S.C. 180).
4. I have heard the learned crronsel for the parties. In order to invoke the provisions of Order VII, Rule 11(d) C.P.C. the suit should appear from the contents of the plaint to be barred by any law, according to the contents of the plaint, the plaintiff filed suit for recovery of damages,declaration and illegal dismissal, he leveled serious allegations alleging mala fides and controversial facts which have to be appraised by evidence, further the suit is not simplicitor declaration challenging the dismissal but also seeks compensation in the form of damages, which too requires evidence. In order to invoke the provisions of Section 48-A of the University of the Punjab Act the petitioners are required to prove-without any ambiguity that the bar is absolute, the plaintiff alleged certain facts which, led to the present action, whether they .are correct or not has to be looked into and appraised by evidence, the words "good faith" referred to in Section 48-A of the University of the Punjab Act, 1973, are very significant; the University has to prove that it acted in good faith, this means appraising evidence and determination by an independent forum. Further learned counsel for the respondent referred to the Registrar; University of the Punjab, Lahore and another Versus Rana Asghar Ali alias Muhammad Asghar (1993 S.C.M.R. 1681) whereby the provisions of Section 48- A of the University of the Punjab Act have been interpreted and it has been held that the bar is not absolute and in cases of deliberate avoidance to exercise power, the University would loose aura of immunity from attack under Section 48-A of the Act, whether the respondent's case falls into this exception or not, can only be determined after appraisal of evidence, thus, the trial Court was right in rejecting the application under Order VII, Rule 11 C.P.C. and holding that the matter needs appraisal of evidence and inquiry. The precedent cited by the learned counsel for the petitioners is distinguishable, there is no jurisdictional error or material illegality, therefore, this petition has no merits and is dismissed. No order as to costs.