1. SHUJAATALIKHAN,J.---Throughthispetitionunder Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged order dated 9-12-2011 passed by the learned Civil Judge 1st Class, Rajanpur (respondent No.2) as well as judgment dated 18-7-2012 passed by the learned District Judge, Rajanpur (respondent No.1).
2. 2.Pithily, respondent No.3 filed a suit seeking declaration to the effect that she is lawful owner in possession of suit-land and Mutation No.705, dated 25-11-2006, being result of forgery and fraud is liable to be cancelled. The said suit was contested by the petitioner by way of filing written statement.
3. Out of divergent pleadings of the parties the learned trial Court framed necessary issues and evidence of respondent No.3 was being recorded when the petitioner filed an application under Order VII, rule 11, C.P.C. for rejection of plaint on the ground that the suit was barred in view of provisions of Punjab Office of the Ombudsman Act, 1997 (hereinafter to be referred as the Act). The said application was dismissed by the trial Court vide order dated 9-12-2011 which was challenged by the petitioner by way of filing revision petition beforerespondentNo.1whichwasdismissedvidejudgmentdated 18-7-2012; hence this petition.
4. 3.Learned counsel for the petitioner contends that verdicts of both the courts below are result of misinterpretation of law; that when respondent No.3 himself opted to agitate the matter before the Provincial Ombudsman, by way of filing application, he was not obliged to file the suit, subject-matter of the instant petition after dismissal of his application by the Provincial Ombudsman and in case he had any grievance he could have challenged the order of the Provincial Ombudsman at the appropriate forum; that proceedings before the Provincial Ombudsman being judicial in nature, respondent No.3 was debarred to re-agitate the matter before the Civil Court; that in case more than one remedy is available once an aggrieved person opts to one of them he cannot switch over to the other after failure in the earlier; that though the petitioner while filing written statement took preliminary objection that the suit filed by respondent No.3 was not maintainable but the learned trial Court as well as the learned revisional Court did not pay any heed to the said fact; that when proceedings from the inception are nullity in the eye of law the same should be buried at the outset; that section 9 of the Act clearly stipulates that when the jurisdiction of Civil Court is barred by any legislation the Civil Court cannot assume jurisdiction on its own; that both the courts below failed to appreciate that decision on the application filed by the petitioner before the Provincial Ombudsman runs as res judicata; that approach of both the courts below while holding that the inquiry before the Provincial Ombudsman had nothing to do with the subject-matter involved in the suit, is alien to the well-established law on the subject and that special enactment overrides the general law and as such the Act being special law has overriding effect over the provisions of Code of Civil Procedure which is a general law. To substantiate his contentions learned counsel has referred to the judgments reported as Board of Intermediate and Secondary Education, Lahore v. Saima Azad (1996 SCM R 676), DarayusCyrus Minwala v. National Accountability Bureau and two others (2010 M LD 1931), Mst. Mumtaz Maqsood v. Secretary, Revenue Division and another (2010 YLR 1869), University of Health Sciences through Vice-Chancellor v. Dr. Azeemuddin Zahid and another (2007 CLC 1055) and Shaukat Ali v.
5. Secretary, Revenue Division, Islamabad (2005 PTD 1855). In addition to the above judgments, learned counsel has also referred to the books known as Maxwell on The Interpretation of Statutes, Twelfth Edition, written by P.St. J. Langan and Salmond on Jurisprudence, Twelfth Edition, authored by P.J.
6. Fitzgerald, M.A., as well as different articles by member of the legal fraternity.
7. 4.After hearing learned counsel for the petitioner and going through the documents appended with this petition, the case-law and other material tendered during the arguments, I am of the view that moot question involved in this petition is as to whether any order passed by the Provincial Ombudsman operates as res judicata and jurisdiction of the Civil Court is barred. To resolve the controversy a reference to section 9 of the Act is imperative which for convenience of reference is reproduced hereinbelow:--- "9.Jurisdiction, functions and powers of the Ombudsman.--- (1) The Ombudsman may on a complaint by any aggrieved person, on a reference by the Government or the Provincial Assembly or on a motion of the Supreme Court or the High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees: Provided that the Ombudsman shall not have any jurisdiction to investigate or inquire into any matters which-- (a)are sub judice before a Court of competent jurisdiction on the date of the receipt of a complaint, reference or motion by him; or (b)relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign State or Government; or (c)relateto,orareconnectedwith ,thedefenceofPakistan or any part thereof the Military, Naval and Air Forces of Pakistan, or the matters covered by the laws relating to those forces.
8. (2)Notwithstanding anything contained in subsection (1), the Ombudsman shall not entertain for investigation any complaint by or on behalf of a public servant or functionary concerning any matters relating to the Agency in which he is, or has been, working, in respect of any personal grievance relating to his service therein.
9. (3)For carrying put the objectives of this Act and, in particular for ascertaining the root causes of corrupt practices and injustice, the Ombudsman may arrange for studies to be made or research to be conducted and may recommend appropriate steps for their eradication."
10. From the above quoted portion it is clear that it does not fall within the domain of Provincial Ombudsman to enter into arena of civil disputes between the private parties rather his jurisdiction is confined to conduct inquiries against the members of the agencies, departments or statutory bodies with specific reference to corrupt practice and misuse of powers by them.
11. 5.Insofar as filing of application by respondent No.3 before the Provincial Ombudsman is concerned, suffice it to observe that admittedly respondent No.3 filed application before the Provincial Ombudsman complaining about illegalities committed by the Revenue Authorities in connivance with the petitioner, however, the same was subsequently consigned to record as the same not pursued by respondent No.3. A perusal of order dated 31-3-2009 passed by the Provincial Ombudsman makes it clear that no right between the parties was determined by the said authority, thus, in my humble view the order passed by the Provincial Ombudsman cannot take away the jurisdiction of the Civil Court to determine a dispute between private parties arising out of civil liabilities.
12. 6.Itisimportanttomentionoverherethatwhiledefiningtheword'agency'undersection2(1)oftheActthisCourt and thecourtssubordinateheretohavebeenexcludedfromthejurisdictionoftheProvincialOmbudsman.
13. Thisfactalsolends supporttomyviewthattheproceedingsconductedbeforethe Provincial Ombudsman have no bearing at all on the suit filed by respondent No.3 especially when neither any order passed by the Provincial Ombudsman nor any proceedings pending before him had been challenged in the said suit.
14. 7.Now coming to the bar contained in section 29 of the Act, I am of the view that a perusal of said section is conducive which for ready reference is reproduced hereinbelow:--- "29.Bar of jurisdiction.--No Court or other authority shall have jurisdiction--- (a)to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Act, or (ii)to grant an injunction or stay or to make any interim order in relation to any proceeding before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Ombudsman."
15. A glance over the afore-quoted provision makes it abundantly clear that jurisdiction of any court or authority has been ousted to question the validity of any action taken or proposed. Further, the legislator has held that no injunctive order can be passed against the proceedings pending before the Provincial Ombudsman.
16. 8.When we go through averments of the plaint, it becomes crystal clear that neither any order passed by the Provincial Ombudsman nor any proceedings before him have been challenged in the suit filed by respondent No.3, therefore, the bar contained in section 29 is inoperative against respondent No.3.
17. Even otherwise, civil courts are considered as courts of ultimate jurisdiction to adjudicate upon the matters arising out of civil disputes between the parties, therefore, the jurisdiction vested in the Civil Court cannot be taken away on the ground that aggrieved party has already opted to approach another, forum for redressal of his grievance.
18. 9.Now coming to the case-law cited by learned counsel for the petitioner, I am of the view that the same is not applicable to the facts and circumstances of instant case inasmuch as in the case of Darayus Cyrus Minwala (Supra) the question was relating to double jeopardy whereas in the instant case, as held earlier, the same is not the position. It is the civil court which has to decide the matter between private persons qua civil disputes ultimately. Likewise, in the case of Mst. Mumtaz Maqsood(Supra) the question discussed was the application of principle of res judicata whereas in the case in hand, as discussed above, the order pissed by Provincial Ombudsman does not run as res judicata, therefore, the said judgment is also not applicable to the instant case. Insofar as the cases of Board of Intermediate and Secondary Education and University of Health Sciences through Vice- Chancellor (Supra) are concerned, suffice it to observe that the same have got not the remotest relevancy with the facts of the case in hand as the same pertains to power of the Provincial Ombudsman to examine answer sheets of the student appearing in any examination. As far as case of Shaukat Ali (Supra) is concerned the same being from the jurisdiction of Federal Tax Ombudsman) is not binding on this Court. Even otherwise, the preposition involved in the case being polls apart from one involved in the instant matter is of no help to the petitioner.
19. 10.Now coming to the other material produced by learned counsel for the petitioner in the shape of articles and books, I am of the view that the same are of no help to the petitioner to wriggle out from the proposition as to whether the order passed by the Provincial Ombudsman can be considered as bar while pressing into service principle of res judicata.
20. 11.Even otherwise, the trial Court would attend to the point as to whether respondent No.3 was debarred to file a suit after dismissal of his application from the Provincial Ombudsman and the petitioner would be at liberty to challenge findings of the trial Court before appropriate forum.
21. 12.For what has been discussed above, I have no doubt in my mind to hold that the order passed by the Provincial Ombudsman cannot impede the way of Civil Court especially when no order passed by the Provincial Ombudsman has been challenged in the suit pending before theCivilCourtandtheapplicationfiledbythepetitioner under, Order VII, rule 11, C.P.C. was rightly dismissed by the courts below rendering their decision unexceptionable. Consequently, instant writ petition is dismissed.
22. C.M. No.888 of 2013.
23. I3.Since the main case has been decided, instant application has become infructuous and the same is disposed of accordingly.