Impugned herein is the judgment and decree dated 12.5.2005 of the learned Additional District Judge-V, D.I.Khan vide which the learned Court upheld the judgment and decree of the trial Court in Suit No, 133/1 of 2001 decided on 30.10.2001.
2. Briefly narrated, the facts of the case are that Aziz-ur-Rehman and others filed a suit against Mualana Muhammad Zahir Shah and others Defendants-Respondents No, 1 to 6 for declaration to the effect that the plaintiff-petitioner is attached to Devbandi school of thought and he is the Mutawali of mosque known as "Arayanwali" situated in Mohallah Jattanwala, Paharpur city while the Plaintiff No,2 Hafiz Abdul Hameed is the Pesh Imam of the said mosque and defendants- Respondents No, 1 to 6 herein, who profess Brelvi school of thought, have got no concern with the said mosque. The order of Sub Divisional Magistrate dated 13.10.1997 attaching the property under the provisions of Section 146 Cr.P.0 was also challenged.
3. The Defendants-Respondents No, 1 to 6 submitted a detailed written statement wherein the allegations contained in the plaint were hotly contested. Alongwith the written statement, Barkat All Defendant No, 5 self and as attorney for Defendants No, 4 to 6 submitted an application for rejection of the plaint under the provisions of Order VII Rule 11 Code of Civil Procedure. The learned trial Court, after hearing the learned counsel for the parties and perusing the record, came to the conclusion that as the plaintiffs have filed the suit with respect to a public trust/public charity, the sanction of the Advocate General, NWFP, as envisaged under Section 92 C.P.C, having not been sought, the suit is barred by law and thus invoking the provisions of Order VII Rule 11 C.P.0 rejected the plaint vide the impugned order dated 30.10.2001. This order,. on appeal, was confirmed by the learned Additional District Judge-V, D.I.Khan and hence the present revision petition.
4. Muhammad Wahid Anjum, learned counsel for the petitioner submitted that the provisions of Section 92 C.P.0 were not applicable to the facts and circumstances of the case and the sanction of the Advocate General was not necessary to be obtained because it was not proved on the record that the suit mosque was a public trust or charity. It was also argued that the Defendants- Respondents No, 1 to 6 had filed a detailed written statement and the learned trial Court was duty bound to have framed issues and afforded the parties an opportunity to lead pro and contra evidence and only after recording of the evidence, the learned Court could determine that it was a public or private trust.
5. On the other hand, Mr. Gauhar Zaman Kundi, learned counsel for the respondents submitted that there was a dispute between the parties which was likely to create a breach of peace between the parties, thus, proceedings under Section 145 Cr.P.O were initiated against the parties by the local police and ultimately the suit mosque was attached under the provisions of Section 146 Cr.P.C.
Then, an agreement was executed between the parties that every school of thought would have the right to offer prayers individually but no congregational prayers would be held in the mosque, so, admittedly it was a trust for which, prior to the institution of the suit, the sanction of the Advocate General, as envisaged under Section 92 C.P.C, was essential. The learned trial Court has rightly rejected the plaint of the petitioners under the provisions ibid which order has rightly been upheld by the learned Additional District Judge in appeal. It was also argued that there are concurrent findings of facts against the petitioner which cannot be set-aside in the limited revisional jurisdiction of this Court. Reliance in this respect was placed on Kathiawar Cooperative Housing Society Limited through General Secretary. Vs. Macca Masjid Trust through Secretary and 9 others (2000 CLC 1182 Karachi).
6. I have given anxious consideration to the facts and circumstances of the case.
7. There is no cavil to the proposition that once it is proved on the record that the property, subject- matter of litigation, is either a public trust or public charity, prior permission of the Advocate General must be obtained for institution of the suit but the question here is that when the plaint was filed and written statement was submitted by the defendants-respondents, it was the bounden duty of the learned trial Court to have framed proper issues and afforded opportunity to the parties to lead pro and contra evidence and pursuant to that, if it is proved on the record that the property, subject-matter of the litigation, is either public trust or any charitable institution, then the bar under Section 92 C.P.0 will be attracted and the suit would be liable to be dismissed but if from the evidence on the record it is discernable that it is a private trust, then the provisions of Section 92 C.P.0 would not be applicable because when a person claims a property in his private capacity and nowhere the public trust or charity is alleged in the plaint, then the bar contained under Section 92 C.P.0 would not be applicable as held in the case of Miskeen Vs. Additional District Judge, Mansehra and 32 others (2003 SCM R 121).
8. The case law cited by learned counsel for the petitioner has got no nexus with the facts and circumstances of the present case as in the cited judgments the suit property was admittedly a waqf property but in the present case, the status of the property itself is in dispute.
9. The orders of the two Courts below are contrary to law, justice and are liable to be set-aside.
10.In view of the facts and circumstances of the case, this civil revision is accepted, impugned judgments and decrees of the learned appellate Court as well as of the learned trial Court are set- aside and the matter is remanded back to the learned trial Court with the direction to frame proper issues in the case and give the parties an opportunity to lead evidence and thereafter decide the case on merits. No order as to costs. The parties are directed to appear before the trial Court on 18.6.2008.