' MUHAMMAD AKHTAR SHABBIR, J.--- This petition is directed against the judgment dated 16-5-2007 passed by a learned single Judge of the Lahore High Court, Lahore in C.R. No,31 of 2007.
2. The brief resume of the case is that the respondent Miss. Wajiha Arooj had instituted a suit of recovery of 25,20,300 plus 15,000 dollars as damages and compensation against the defendant/petitioner herein. The suit was contested by the defendant/ petitioner by filing a written statement raising (advanced averments of the plaint) objection to the jurisdiction of the Civil Court as per provision of section 48-A of the University of the Punjab Act, 1973 and institution of the suit in absence of the notice under section 80 of the C.P.C. From the factual controversies appearing on the pleading of the parties, the learned trial Court framed various issues including the issue of the jurisdiction of the Civil Court to adjudicate upon the subject matter.
3. The respondent/plaintiff produced her evidence and the case was fixed by the trial Court for defendant's evidence. Before producing evidence the petitioner, filed an application before the trial Court under Order VII, rule 11(d) of the, C.P.C. With the assertion that suit of the plaintiff/respondent is barred by section 48-A of the University of Punjab Act, 1973, hence her plaint may be rejected.
The application filed by the petitioner was contested by the respondent. The trial Court after hearing the parties dismissed the application on 9-9-2006. The order of the trial Court was challenged through Revision Petition which has been dismissed, vide impugned judgment, out of which this petition for leave to appeal has arisen.
4. The learned counsel for the petitioner-University contended that section 48-A of the University of the Punjab Act, 1973 has barred the jurisdiction of the civil Court in entertaining the suit against all acts done or orders passed by the University in good faith and these shall not be questioned in any Court by suit or otherwise. Further argued that the requirement of section 80 of the Civil Procedure Code of issuing a notice to the petitioner has also not been performed by the respondent and the suit was liable to be rejected there and then.
5. We have heard the learned counsel for the petitioner and perused the record with this assistance.
6. Section 48-A of the University of the Punjab Act, 1973, contemplates as under:-- "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.
7. Section 9 of the Civil Procedure Code empowers the Court to try all the civil suits expressly or impliedly barred. Provision of section 9 is reproduced as under:-- "The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly impliedly barred."
8. By virtue of provision of section 9, the civil Courts are granted-general jurisdiction to try all suits of civil nature. Civil Courts are Courts of ultimate jurisdiction and unless jurisdiction is either expressly or impliedly barred, the final decision with regard to a civil right, duty or obligation, shall be that of the civil Courts, where allegation of mala fide action has been made in the plaint, the Court has jurisdiction to examine acts, plaintiff would prove mala fide raised in the plaint through evidence. Reference in this behalf can be made to the cases of Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698, Zafarul Hassan v. The Republic of Pakistan PLD 1960 SC 113, Messrs Chalna Fibre Company v. Abdul Jabbar PLD 1968 SC 381..
9. From plain reading of section 48-A ibid, it is manifestly clear that the acts, orders or proceedings passed, if in good faith, shall be final and shall not be called in question in any Court but if the acts done by public officer or functionaries of the Federal or Provincial Government are based on malice, for giving torture or to harass the concerned person, it can be assailed in the civil Court. It has been laid down by the superior Courts that where action or order passed by the public officer, tribunal or authorities is within the four corners of jurisdiction, the Civil Court cannot entertain the lis. But where the order passed or act done was void, or without jurisdiction, or mala fide, or in excess of jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the civil Court would have the jurisdiction to interfere with the same.
Reference can be made to the cases of Province of the Punjab v. Yaqoob Khan 2007 SCM R 554, Abbasia Coop Bank v. Muhammad Ghaus PLD 1997 SC 3.
10. Where the acts done, orders passed, or proceedings taken by the University are in good faith, the University of Punjab Act would not grant civil Court the jurisdiction to adjudicate upon the question as to whether the challenged act is within the ambit of University of the Punjab Act or not.
The provision section 48-A, excluding jurisdiction of the civil Court is a mixed question of law and fact which can only be adjudicated upon by the Court after recording evidence. The Court will determine whether the act done, or order passed, or the proceedings taken have been based in good faith or otherwise and this cannot be done without recording the evidence.
11. So far as the other objection of the learned Advocate Supreme Court for the petitioner regarding non-issuance of notice to the defendant-petitioner under section 80 of the Civil Procedure Code is concerned, it would be appropriate and proper to reproduce the same for ready reference and further benefit as under:-- "80. Notice (1) A suit may be instituted against the Government or against a public officer, in respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to, or left at the office of,--
(a) in the case of a suit against the Federal Government, a Secretary to that Government; (b)(i) in the' case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the Collector of the District; and
(ii) in the case of a suit against the Federal Government relating to the affairs of a Railway, the General Manager of the Railway concerned,and in the case of a public officer, delivered to him or left at his office stating the cause of action, the name, description of place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shall not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiffs claim, within the period of two months from the date of the institution of the suit: ' Provided that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written statement."
12. By taking into consideration the above provisions of law (provisions of section 80, C.P.C.), it is crystal clear that if a proper notice is not giving, or according to subsection (2), if a suit to which provisions of section 80 are applicable, is filed without having left or delivered notice, the Government shall be allowed not less than three months' notice to submit written statement and absence of notice in such case will not effect the suit. Section 80 of the Civil Procedure Code is express, unequivocal, and explicit, and admits no implication. The only object of the section is to give the Government or the public officer sufficient notice of the case which is proposed to be brought against it or him, so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Government or the public officer to arrive at a decision, it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the relief asked for. Reference can usefully be placed on the case of State of Madras v. C.P. Agencies and another AIR 1960 SC 1309. The suit against the Government, federal or provincial, or a public officer can be instituted without proper notice, service of prior notice is not imperative. Reference can be made to a judgment of the High Court of Sindh, Karachi, in the case of Mercantile Fire and General Insurance Co. Of Pakistan Ltd. And another v. Controller of Insurance 1989 CLC 865.
13. In case of a suit against Government or public officer purported to be done in his official capacity, if no notice has been delivered to him or left at office of such public officer, two months before filing of such suit, then the mandatory period of three months to be allowed to the E Government to submit its written statement, could not be curtailed on any technical ground. These arguments are further supported by the dictum laid down in the case of Assistant. Commissioner, Latifabad, Hyderabad and 2 others v. Messrs Muhammad Enterprises through Managing Partner PLD 1999 Kar.
329.
14. If notice before filing of suit is not issued by the plaintiff to the defendant-petitioner, the Court will grant three months' time for submitting the written statement and without notice, the provisions of section 80 would not vitiate the proceedings of the suit.
15. The Court can settle any issue with regard to its own jurisdiction which shall be decided after recording the evidence and in the instant case the Court has settled the issues.
16. In view of the above discussion, we find no infirmity or illegality in the impugned order of the High Court which is unexceptionable. The learned counsel for the petitioner has miserably failed to persuade this Court to interfere with the same.
17. For the foregoing reasons, this petition being devoid of force is dismissed and leave to appeal refused.