' MUHAMMAD ALAM KHAN, J.--- After hearing the parties at some length and scanning the record, it reveals that the petitioner Matiullah had brought the suit for recovery of original amount of Rs,3,600 as well as the produce on the basis of average produce statement amounting to Rs,18,000, fee of the counsel and expenses on documentation amounting to Rs,3,300 before the learned Senior Civil Judge D.I. Khan. On issuance of notice to the defendants/respondents, instead of filing written statement, they opted to move an application under Order VII, rule 11, C.P.C. Read with section 14 of the Evacuee Trust Property Act, 1975 for rejection of the plaint on the ground that the suit was barred by law as in view of the provisions contained under section 14 of the Act (ibid), the Civil Court lacks the jurisdiction to entertain the suit against the Board as well as its functionaries. The learned trial Court after hearing the parties in the light of record came to the conclusion that the existence or non-existence of jurisdiction is a question of fact which can be determined after recording pro and contra evidence of the parties and thus, by order, dated 5-6-2005 dismissed the application of the defendants/respondents. Feeling aggrieved, the defendants challenged the said order in a revision petition which was accepted by the learned Additional District Judge-II, D.I. Khan vide order, dated 1-2-2006 and consequently the plaint was returned to the plaintiff for its presentation to the proper forum and hence this writ petition.
2. We have fully scanned the available record of the case and have anxiously considered the provisions of relevant law with respect to the ouster of jurisdiction contained in section 14 of the Evacuee Trust Property Act, 1975.
3. Perusal of the record reveals that although the claim of the petitioner is ancillary to the Evacuee Trust Property, but there is no question with respect to the determination of the nature of the property whether it is Evacuee Trust Property or otherwise regarding which under section 8 of the Act (ibid), the Chairman Evacuee Trust Property Board had got the exclusive jurisdiction. The law on the subject further reveals that if a property is declared to be Evacuee Trust, the Chairman, Evacuee Trust Property Board had the jurisdiction to annul/cancel the allotment or alienation.
Hence before us no question of existence or nonexistence of the evacuee nature of the property is involved. The question involved is that whether the petitioner is entitled to the relief claimed in the plaint with respect to the compensation for the alleged lease and nondelivery of possession of the landed property.
4. Furthermore, if there is an ouster clause in the statute, barring the jurisdiction of Civil Court, that must be construed in favour of the existence of jurisdiction of the Civil Court, as the Civil Court has got plenary and over all jurisdiction under section 9, C.P.C. The other cardinal principle of interpretation is that if there is a barring provision in a Statute and special jurisdiction is conferred upon functionaries created under that particular statute, then they must act within the four corners of the Statute and the moment it is found that the functionaries acting under the Statute have themselves violated these provisions and travelled beyond their jurisdiction, then the Civil Court will act as the Court of corrective process curing the wrongs done by the functionary under that particular statute in view of the proposition explained in Abdul Hamid Khan v. Government of West Pakistan and others PLD 1969 Pesh. 324 and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner Khairpur and another PLD 1970 SC 180.
5. There is yet another aspect of the case also, the vires of sections 9, 10, 14 and 21 were challenged before the Federal Shariat Court which were declared as un-Islamic in the dictum handed down in the case reported as Mufti Iftikharuddin v. Federal Government 1992 FSC 188.
6. This is the cardinal principle of law that when an application is moved for the rejection of plaint or return thereof under Order VII, rule 11, C.P.C. Involving controversial questions of law and facts, then evidence must be recorded and the plaint cannot be summarily rejected or returned to the plaintiff for its presentation to the proper forum as held in the case-law reported as Ghulam Dastagir and others v. Mst. Mariam and others 1993 MLD 1005 and Messrs Hoechst Pakistan Ltd. v.
Messrs Cooperative Insurance Societies and others 1993 MLD 2464.
7. As the learned revisional Court has non-suited the petitioner summarily without considering the record or allowing the parties to lead pro and contra evidence, thus, we are constrained to accept this writ petition, set aside the impugned judgment of the learned revisional Court dated 1-2-2006 as ultra vires, without jurisdiction and without lawful authority and with no legal effect, and remand the case to the learned Civil Judge-IV, D.I. Khan with the direction to redecide the same afresh on merits after recording pro and contra evidence of the parties who shall be at liberty to submit written statement and list of witnesses. The parties are directed to appear before the said Court on 26-1-2008.