' ZAFAR AHMED RAJPUT, J.---By means of this application, defendants Nos.1, 2 and 4 have sought rejection of the plaint under Order VII, Rule C.P.C.
' Brief facts of the case are that the plaintiff has filed the instant suit for declaration, injunction, recovery of articles and damages of Rs,2 Crore against the defendants, with the following prayers: "1. Declare the Plaintiff is lawful owner of the diamonds, gold, precious Stones and Zircones as per inventory dated 10.11.1999 and the Defendant No,1, 2 and S are bound to return the same without loss of time.
2. Declare the action of the Defendant No,1&2 in making search and seizure is illegal, without lawful authority and without jurisdiction.
3. Declare that the Defendant No,1 &2 have acted illegally and malafidely and in collusion with each other, hence they are liable to pay damages of Rs,2,00,0,000/-(sic) (Rupees two crore only) to the. Plaintiff jointly and severally. And Defendant No,4 and 5 are equally liable for the acts of their servants/Agents.
4. Nazir of High Court or Official Assignee to carry out inspection, weighment, valuation in presence of Plaintiff, seizing Officer, Representative of Controller of Customs (Valuation) Department, and Pakistan Gems Manufacturer & Exporters Associations and same may be returned to Plaintiff or kept in .Safe custody with the Nazir of High Court of Sindh as there is further apprehension of removal, substitution and replacement.
5. Order for attachment 4 properties of defendants Nos.1 to '2 or ' take, sufficient guarantee as there is very likely hood and Defendant Nos.1 and 2 removing their properties and leaving the jurisdiction of the Hon'able Court.
6. Any other relief or reliefs which this Hon'able Court may deem fit and proper in the circumstances of the case.
7 Award cost".
' Heard the learned counsel for the parties and perused the material available on record.
' Learned counsel for the defendants has mainly argued that the plaintiff's suit does not come within the four corners of section 42 of the Specific Relief Act, 1877, and the damages being consequential relief cannot be claimed on violation of any legal right unless the act of the defendants is proved illegal and unlawful, therefore, according to him; the question of damages is premature and thus beyond the scope of law. He has also contended that the Plaintiff was involved in the act of smuggling and their shop was raided on 10:11.1999 by the raiding party of Pakistan Coast Guards in lawful manner and the goods were seized and other proceedings as required under Sections 162, 163 and 171 of the Customs Act, 1969 (hereinafter referred as the Act, 1969) were taken by the raiding party. The case against the Plaintiff' was submitted for adjudication under Section 179 of the Act, 1969, whereupon, the Additional Collector of Customs PCG passed an order-in-original on 21.08.2000, whereby the Plaintiff was acquitted with the order of releasing his goods unconditionally. But the said order-in-original was assailed by the defendants before the Central Board of Revenue under Section 195 of the Act; 1969, who set aside the said order-in-original and remanded the case to the Collector of Customs (Adjudication)
Karachi for de novo adjudication on merit vide order dated 13.01.2001. Meanwhile, the plaintiff filed an appeal before Customs, Excise and Sales Tax Appellate Tribunal under Section 194-A of the Act, 1969, who vide order dated 09.03.2007 set aside the order dated 13.01.2001, passed by the Central Board of Revenue and maintained the order-in-original passed by the Additional Collector of Customs PCG. Against that order, defendant No,3 has filed a Customs Reference / Application bearing No,376 of 2007 before the High Court, which is still pending adjudication. He has, therefore, maintained that since the Reference is pending before the High Court in the same matter, the suit is not maintainable in law. In support of his contentions, learned counsel for the defendants has relied upon following case-law. i. Rashid Ahmad v. The State (PLD 1972 SC 271). It has been held that the question of jurisdiction can be raised at any stage of the proceedings of a case. ii. West Pakistan Province v. Hazrat Gul Khan and another (PLD 1966 (W.P.) Peshawar 34). It has been held that where the question of jurisdiction is raised, the Court must consider and decide the question before it can move step further in the case. iii All Muhammad and others v. Muhammad Shafi and others (PLD 1996 SC 292). It has been held that the jurisdiction cannot be conferred upon any Court by the consent of the parties, which has no jurisdiction to entertain case or appeal. iv. Mian Sultan Ali Nanghiana v. Mian Nur Husain (PLD 1949 Lahore 301). It has been held that where a right has been created by a statute which also prescribes the manner in which that right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute.
' Conversely, the learned counsel for the Plaintiff has contended that before this application, the defendants had filed an application bearing CMA No,4352/ 2001 on 19.01.2001, for rejection of the plaint but that application was disposed of by this Court, with consent of the parties, vide order dated 26.11.2002 therefore, this successive application on the same cause is not maintainable under the law. He has further contended that the plaintiff has led his evidence but the defendants have failed to lead their evidence after closing of plaintiff's side for evidence, and they are lingering on the matter on one pretext or the other. He has also contended that the plaint should not be rejected at advance stage of the case. He has further contended that the ouster of jurisdiction as laid down under Section 217 of the Customs Act, 1969, is available only to the extent of bona fide act committed by the customs functionaries, but the mala fide acts of the said functionaries can be adjudged by this Court under its civil jurisdiction.
' I have given my anxious consideration to the contentions of the learned counsel for the parties. It is an admitted position that the earlier application filed under Order VII, Rule 11, C.P.C. bearing CMA No,4352/2001 was disposed of by this Court by a consent order and with the observation that the legal objections raised by the defendants may be decided at the time of final arguments; therefore, I am in agreement with the learned counsel for the plaintiff that the second application for the same cause is not maintainable.
' So far the question of Customs Reference pending adjudication before this High Court is concerned, it may be noted that the same has been filed by the defendant No,3 impugning the order-in-original dated 09.03.2007, passed by the Customs, Excise and Sales Tax Appellate Tribunal, which has no concern with the claim of the plaintiff in the instant suit and merely pendency of the said Reference does not spell out any positive prohibition of any legal provision for rejection of the plaint.
' It may be noted that the proposed issues filed by the plaintiff were adopted by this Court on 26.11.2002. The plaintiff's side for evidence was closed on 04-03-2009. Thereafter, the defendants/ witnesses filed their affidavit-in-evidence on 03-08-2009, but they failed to appear in witness box for their cross-.examination. Even, on the last date of hearing i,e, 11.09.2014 a last and final chance was given to defendants to produce their witnesses today at 11:00 a.m. for their cross examination, with a note of caution that if the defendants/witnesses fail to appear for cross-examination, their side for evidence shall stand closed automatically. Hence, the matter is now likely to be fixed for final arguments and it shall be decided on its merit, considering all the factual as well as legal issues involved in this case.
' So far the application of section 217 of the Act, 1969, in order to appreciate the contentions of the learned counsel for the parties, it would be advantageous if the provisions of section 217 of the Act 1969 are reproduced: "217 Protection of action taken under the Act.
' (1) No suit, prosecution or other legal proceeding shall lie against the [Federal Government] or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the rules and notwithstanding anything in any other law for the time being in force no investigation or enquiry shall be undertaken or initiated by any governmental agency against any officer or official for anything done in his official capacity under this Act, rules, instructions or directions made or issued there under without the prior approval of the Board.
(2) ------------------------------------------------------------------------------------ ----------------------------------------- ' The above provisions of law clearly lay down the common law rule of the ouster of the jurisdiction that where the government or their servants do, or intend to do anything, under which they are authorized to act, shall not be liable civilly or criminally. However, it is pertinent to note that the protection provided by this provision is conditional upon their having acted in good faith; accordingly, a mala fide act is not protected under this section. It is; therefore, now well settled that ouster of the jurisdiction can be claimed when the impugned action is focus to be within four corners of the statute under which it is taken. It is the consistent views of the superior Courts that the provisions contained in statutes debarring the Court of general jurisdiction is to be construed very strictly and unless the case falls within letter and spirit of the barring provision it would not be given an effect. However, once an action taken under a statute is not within the four corners of that Act, such action would be without jurisdiction. In the case of Federation of Pakistan v. Saman Diplomatic Bonded Warehouse (2004 PTD 1189), this Court has held that the bar of jurisdiction could never be sustained if it could be shown that the impugned action was taken not in bona fide exercise' of powers conferred by the Act or the Rule and where the jurisdiction of a Civil Court is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown that the action taken by the authority was not mala fide and that in taking the action, the principles of natural justice was not violated and unless all the aforesaid conditions are satisfied, the action of the authority would not be immune from being challenged before a Civil Court.
' The case-law cited by the learned counsel for the defendants is based on settled principles of law with regard to raising the issue of jurisdiction at any stage of the proceedings of a. case, its consideration and decision before moving further step in the case, non-conferring of jurisdiction on the Court by consent of the of parties and enforcement of a right under a statute by prescribed manner. However, the above cited case-law does not improve the case pleaded by the defendants being on distinct issues.
' In view of what has been discussed hereinabove, this application, being devoid of any merit, is hereby dismissed.
2. The defendants have failed to produce their witnesses in terms of order dated 11.09.2014; therefore, the defendants' side for evidence stands closed.
' Office is directed to fix this matter for filial arguments