' AMIN-UD-DIN KHAN, J.---Through this judgment we intend to decide the following cases as the same have nexus with each other:-
1. R.A.No.4-C of 1987
2. R.A.No.5-C of 1987
3. Writ Petition No 6823 of 1990
4. Writ Petition No.12323 of 1996
5. Writ Petition No.295 of 1993
6. Writ Petition No.1131 of 2007
7. Criminal Original No.21-C of 2007 8. Criminal Original No.29-C of 2007
9. Criminal Original No.45-C of 2003
10. Criminal Original No.43-C of 2003
11. Criminal Original No.11-C of 1990
12. Criminal Original No.89-C of 2006
13. Criminal Original No.90-C of 2006 and
14. Criminal Original No.63-C of 2011.
15. Criminal Original No.73 of 2010.
2. This review application (R.A. No.4-C-1987) has been filed against the' judgment and decree passed by learned Single Judge of this Court dated 2-2-1987 whereby Civil Revision No. 907-D of 1986 was dismissed in limine whereas Review Application No.5-C of 1987 has been filed for the review of judgment and decree dated 2-2-1987 passed in Civil Revision
3. For decision of these review applications noting of brief facts in this judgment is necessary:- ' The lis started through filing of a suit for declaration which is subject matter of R.A.No.4-C of 1987 on 7-3-1968 with a prayer that on the basis of " ins " and making the land cultivable plaintiffs' rights have been created in the land and they be declared as tenant under the defendant i.e. Province of Punjab and further a prayer that without proceeding under section 24 of the Colonization of Government Lands (Punjab) Act, 1912, they should not be evicted and they further piayed for a decree for permanent injunction that they should not be evicted illegally from the suit-land. The learned trial court vide judgment dated 26-6-1984 returned the plaint under Order VII Rule 10 of the C.P.C. On the basis that suit is not maintainable* before the civil court and in the light of section 77(a)(f)(i) of the Punjab Tenancy Act XVI of 1887, same is entertainable by the revenue court. The appeal was preferred before the learned District Judge, Jhang, same was dismissed vide judgment and decree dated 12-1-1986 upholding the decision of the learned trial court. Record shows that Civil Revision No. 907-D of 1986 was filed, same was dismissed in limine vide judgment dated 2-2- 1987. Record shows that Review Application No. 4-C-1987 was preferred and same was entertained by the same learned Single Judge of this Court on 2-5-1987, who earlier dismissed the civil revision in limine vide order dated 2-2-1987.
4. The facts of R.A.No.5-C of 1987 are that plaintiffs on 8-3-1973 filed a suit for declaration challenging therein the auction of the suit-land in favour of the private defendants with a declaration that same has no bearing effect upon the rights of the plaintiffs. The said suit was also ordered to be returned vide judgment dated 26-6-1984 under Order VII Rule 10 of the C.P.C. In view of section 77 of the Punjab Tenancy Act XVI of 1887 for presentation before the revenue court. Other facts are same as noted supra in R.A.NO.4-C of 1987.
5. The fact that review application was also entertained and admitted for regular hearing by the same learned Single Judge; who previously dismissed both the Civil Revisions in limine 'and in the admission order it has been noted that as the land in dispute situates in Colony Area, therefore, in the light of section 6 of the Colonization of Government Lands (Punjab) Act, 1912, application of section 77 of Punjab Tenancy Act (XVI of 1887) is not available. This admission order of review application prima facie shows that learned Single Judge agreed with the arguments of learned counsel for review petitioners.
' We have noticed that Province of Punjab has not admitted the plaintiffs to be the tenants on the land in dispute and further the relief claimed in the suit and the cause of action pleaded do not relate only to the preservation of right of tenancy. In both the suits a decree for declaration of rights as well as permanent injunction has been prayed for and also there is pleading by the plaintiffs that on the basis of "" and making the land cultivable for a period of more than 100 years by their forefathers rights stood created in the suit-land, therefore, when confronted to the learned A.A.-G.
That when defendant-respondent has not admitted the plaintiffs-applicants to be tenant over the suit-land how the impugned orders are sustainable under the law and how he defends the order under review as well as the orders passed by this Court in Civil Revision as well as learned first appellate court and the learned trial court, learned A.A.-G. Except arguing that impugned orders are in accordance with law, could not advance any satisfactory argument.
' We are conscious of the fact that review applications are before us, therefore, we will discuss the legal point only.
6. We have noticed that point in issue is very short but unfortunately these review petitions are pending before this Court for the last 26 years. We are of the considered view that prayer of a plaint and the facts pleaded are to be considered fully while applying Order VII, Rule 10 as well as Order VII, Rule 11 of C.P.C. A plaint cannot be rejected partially or partially returned. Plaint in which even there is a small point determinable by the civil court and even the major portion of cause of action or a prayer is not within the jurisdiction of the civil court to determine, even then a plaint cannot be partially returned. We are refraining ourselves from going into the merits of the case so that it may not prejudice, or injure the rights of any of the parties.
' In the first suit, the creation of some rights on the basis of " " as well as making the land cultivable have been claimed and further a decree for permanent injunction has been prayed that plaintiffs be dealt with in accordance with' law and except the provisions of law they should not be evicted from the suit-land. Whole of the prayer in our view relates to the rights deterthinable by the civil court and the suit which is subject-matter of R.A.No.5-C of 1987, some actions of the Colony Department have been challenged, We have noticed that section 36 of the Act, ibid, is available, which bars the jurisdiction of the civil court but now it is settled law that civil court is a court of plenary jurisdiction and is competent to scrutinize the acts of the authority or department despite the fact that baring provision of jurisdiction of civil court is available in the statute. The law developed by the judgments of august Supreme Court of Pakistan is that civil court can scrutinize the action, if the action of the department is in accordance with the powers conferred upon the department by that statute then the baring provision is available and civil court has no jurisdiction and if the action is without jurisdiction then the baring provision has no bar and civil court can determine and scrutinize the action taken by the department. In this case without determination whether the auction proceedings were within the jurisdiction of Colony Department i.e. Defendant, the decision by the trial court whereby the plaint has been returned is without jurisdiction.
' According to the procedure we can allow or dismiss the review application. If review application is allowed, the judgment under review goes and civil revision revives. It is a procedural matter, as we have noted that unfortunately for the last 26 years these review applications are pending before this Court due to various reasons and further that we are also conscious of the fact that procedure is laid down for the administration of justice and for the interest of justice and it cannot be used as a hurdle D in the way of justice. The suits were filed in the year 1968 and 1973 and without going into merits same have been ordered to be returned for presentation before revenue court, therefore, as we have heard the learned counsel for the parties on whole of the matter in issue and the main grounds which have been discussed for decision of review petition are the same for the decision of the civil revision, therefore, in the above circumstances when the order passed by the learned trial court is not sustainable under the law and by the learned first appellate court and this Court while dismissing revision in limine, the same have been upheld and when the review application has been entertained and admitted to regular hearing 'by the same Hon'ble Single judge of this Court who dismissed the civil revision in limine shows that after hearing the review petitioner, prima facie, the learned Judge agreed with the arguments advanced by the review petitioner, therefore, the review application has been entertained and admitted to regular haring and notice was issued ,to the other side.
7. In these peculiar circumstances, we allow review applications and review the judgment passed by learned Single Judge while dismissing civil revision in lirnine and we also set aside the judgment and decree passed by the learned first appellate court as well as judgment and decree of learned trial court whereby suits have been ordered to be returned for presentation before the revenue court because the suits were filed in the year 1968 and 1973 and proceedings in both the suits have to start from zero after about forty five years of filing of suits. We remand back the cases and suits filed by the plaintiffs will be presumed to be pending before the learned Senior Civil Judge. Mang and the parties are directed to appear before the learned Senior Civil Judge, Jhang on 5-11-2013, who shall proceed with the suits in accordance with law.
8. No order as to costs.
9. At this stage learned counsel for the petitioners state that writ petitions as well as Criminal Original petitions, mentioned in Para 1 of this Judgment, have been filed for the protection of rights of the petitioners and as the cases have been remanded, therefore, petitioners opt to agitate their matter before the learned trial court and do not press these petitions any further, same be disposed of as not pressed.
10. In the light of statement of learned counsel for the petitioner, above mentioned criminal originals as well as writ petitions are disposed of as not pressed. Petitioners will be at liberty to agitate their matters before the learned trial Court.