' MAZHAR ALAM KHAN MIANKHEL, J.---Through this single judgment, we intend to dispose of Writ Petition No, 1448 of 2005 and a Civil Revision No, 1082 of 2005 with regard to the same subject matter and between the same parties.
2. The writ petition filed by the petitioners is against the concurrent findings of the two Courts below, whereby an application moved by present petitioners/defendants under Rule-11 of Order-VII of C.P.C. Was dismissed by the trial Court and civil revision petition against the same was also dismissed. The petitioners who were defendants in the main case have again impugned the concurrent findings of the above said forums in the same case vide which the application for interim injunction moved by the plaintiff/respondents was accepted vide judgment/order dated 31-3-2005 and appeal against the same by the present petitioners was dismissed by the learned Additional District Judge-III, Charsadda vide his judgment and decree dated 17-6-2005.
3. The plaintiff/respondents 1 to 3 through their suit for declaration had claimed the suit property to be their ownership and plaintiff/ respondents 4 to 16 are their tenants in the shops situated in the property in dispute and the defendant/petitioners have got no concern with the suit property fully described in the head note of the plaint.
4. As against that, the defendant/petitioners submitted their written statement and with other legal and factual objections have also raised the question of jurisdiction of the civil Court under the N.- W.F.P. Waqf Properties Ordinance, 1979. The plaintiffs with their suit also filed an application for interim injunction and the defendants submitted a separate application for rejection of the plaint of the plaintiffs being a notified Waqf property and jurisdiction of the civil Court was barred under the provisions of N.-W.F.P. Waqf Properties Ordinance, 1979 and thereby requested for rejection of the plaint. The application of the defendants for rejection of plaint was dismissed by the trial Court vide its judgment/order dated 12-10-2004 without giving any specific decision with regard to the question of jurisdiction and dismissed the same being premature and meritless. The defendants feeling themselves aggrieved of the said order, impugned the same through a civil revision in the Court of District Judge, Charsadda which was filed beyond the prescribed period of limitation on 28-5-2005 and the same was also accompanied by a separate application for condonation of delay. The said revision was dismissed by the Additional District Judge-III, Charsadda vide his judgment dated 17-6-2005. Besides, the application of plaintiff for an interim injunction was allowed by the trial Court on 31-3-2005 and appeal there against by the defendants was dismissed by even dated judgment dated 17-6-2005.
5. Learned counsel for the petitioners in support of his both petitions submitted that there is a specific bar of jurisdiction provided in the Ordinance of 1979 ibid and thus the civil Court has got no jurisdiction to entertain any suit with regard to the Waqf property. He was further of the view that the suit property was notified in the year 1961 and under the provisions of law prevailing at that time i.e. West Pakistan Waqf Properties Ordinance XXI of 1959, the aggrieved party against the said notification was required under the said law to challenge the same. As the said notification of declaring the suit property to be the Waqf property was not challenged by any of the persons feeling themselves aggrieved including the plaintiffs, so the filing of instant suit for declaration on the face of it is against the law and not maintainable. While in support of his civil revision, he was of the view that the injunction granting order on the face of it is illegal, unlawful and without jurisdiction as the civil Court has got no jurisdiction, so the said order has no legal sanctity attached to it which requires to be set aside.
6. As against that, the learned counsel for the plaintiff/respondents while refuting the submissions made by the learned counsel for the petitioners categorically submitted that the findings arrived at by both the lower fora are not only in accordance with law but are also within their competence and jurisdiction. He further submitted that the provisions of Order-VII, rule-11 of C.P.C. In such a situation where the question to be determined within the parameters of Rule-11 require further probe through recording of evidence, cannot be made applicable and plaint as such cannot be rejected summarily. While making his submissions with regard to the civil revision, he was of the view that the plaintiffs, the owners, being in possession as owners of the property prior to the partition of the sub-continent, the order of granting temporary injunction was well within the parameters provided in Rules 1 and 2 of Order XXXIX of C.P.C. And requested for dismissal of both the petitions.
7. Learned counsel for the parties were heard and record of the case was perused. The same would reveal that the suit filed by the plaintiffs is with regard to a declaration of the suit property against the Auqaf Department wherein they have described the suit property in the head note of the plaint but no such numbers of the property whether of Municipal Committee or the Auqaf Department has been given. Similarly, para-4 of the plaint also refers to a previous litigation between the plaintiffs and Municipal Committee Charsadda. Whereas the defendant/petitioners in their written statement have alleged it be a Waqf property and has also referred to a notification of 1961 copy of which also refers to certain Khasra numbeRs,
8. The application under Order-VII, Rule-11 of C.P.C. No doubt can be considered at a very preliminary stage of the suit and the purpose behind the same is burial of an incompetent suit at its inception but the said provisions could only be invoked when bare reading of the plaint of the plaintiffs does not disclose any cause of action or the same is barred by law. When the plaint refers to certain facts alleged in the plaint which required further probe through recording of evidence and considering of other material available on the record, then in that case, the application of the provisions of Rule-11 of Order-VII of C.P.C. Have been condemned by the superior Courts of the country with a consistent view.
9. While coming to the facts and circumstances of the instant case and the impugned orders given by the lower fora are considered then it becomes clear that the question of bar of jurisdiction of the civil Court raised by the defendants in the given circumstances would require further probe as apparently and as alleged by the plaintiffs, the property in dispute appears to be in possession of the plaintiffs and their tenants. Because of apprehension of their dispossession by the defendants, they have approached the Court of law. The plaint as well as the written statement of defendants do not disclose the material facts whether the suit property is the Waqf property or not; whether it is the ownership of plaintiffs as alleged by them or the notified Waqf property as claimed by the defendant/petitioneRs, When such facts still have to be determined, then in that situation, one cannot determine the said question without the help of other material in the shape of evidence and record. The petitioners have alleged bar of jurisdiction of civil Court and the decision of the learned trial Court on their ' application would reveal that the question of jurisdiction has not been at all decided by the trial Court rather their application has been dismissed as premature and meritless. The findings in this regard given by the trial Court appear to be well within the framework of law and revision against the same was also rightly dealt with being barred by law of limitation as well as on merits. So, in exercise of jurisdiction under Article 199 of the Constitution, we are afraid/cannot intervene to help out the petitioners in the given circumstances. Hence, their writ petition is meritless, so dismissed as such.
10. As far as the question of interim injunction granted by the trial Court and then upheld by the Court of appeal is concerned, that has passed its statutory life provided in the law and the same can be reconsidered by the trial Court in accordance with the provisions of Order XXXIX of C.P.C. So, the revision petition thus has also become infructuous in the given circumstances. Hence dismissed as such with no order as to costs.
11. Before parting with the judgment, we would also like to observe that being an important question of law, the trial Court is hereby directed to decide the preliminary issue of jurisdiction before entering into the merits of the case.
'Additional issue ' Whether the civil Court would have jurisdiction in the matter, if so, its effect?
' As the matter is sub judice since 2004, so, the trial Court is also supposed to positively decide this preliminary issue as early as possible but not later than two months.