AEDUI- QADEER CHAUDHRY, J.-.The facts in brief are that the respondent filed a suit for possession and settlement of accounts. The matter, was pending since long and it is contended by the petitioner's counsel that the file bas been sent to the High Court for approval of the tribunal and the files are lying in the Court for the same purpose.
The petitioners are aggrieved by the order dated 26th January, 1978, passed by the Assistant Commissioner Sarwan Mastung calling upon the petitioners to submit the accounts of the produce of the land since 1963, when an order of Mianji-Khana was made but it was not implemented On 13th March, 1978, Tehsildar Mastung in view of the order passed by the Assistant Commissioner attached half of the crop.
3. The learned counsel for the petitioners has assailed the order of Assistant Commissioner attaching the produce, on the ground that there is no procedure in the Kalat C. P. C. For the appointment of receiver and secondly the Nazim had no authority to pass an interim order. After obtaining the written statements and framing the issues he should refer the case to Kazi for decision, who had the exclusive judicial power. The Nazim was only a referring authority and the determination of the dispute is beyond the scope of such authority. There is no force in this contention. Section 2 of the Code speak of a "Adalat-e-Majaz" who entertains the suit. Section 4 contem--plates that "Hakim Adalat" has the authority to ask for the amendment of the plaint if so required. According to section 6 ex parse proceed--ings can be taken if the defendant inspite of service does not appear and the Court has also the authority to set aside it. Under Section 1 "Hakim" has the authority to refer the matter to arbitration or decide it on compromise. Under section 23, an order passed by Nazim is appeal able before the Deputy Commissioner. The scheme of the Zabta- e-Amal Diwani Kalat clearly indicates that a Nazir in cases where he has the pecuniary Jurisdiction to entertain a suit has the authority to pass interlocutory or ancillary orders. If the contention of the petitioners be accepted then it means that till the matter is referred to the Kazi after framing the issues, no interlocutory order can be passed by the Nazim. It would amount to shut the door of justice in cases of emergent nature. It may happen that defendants 'are not served or they could not file their statements. Before a case is referred to Kazi for decision it may take 6 months or more to complete the proceedings before the Nazim. It has been observed in Malik Muhammad Hassan v. Assistant Commissioner Quetta Sub-Division and others in C.P. No. 169 of 1978, that grant of interim relief is part of the working of the judicial system and no separate specific provision is necessary to empower Court or a tribunal to issue such interim orders. This observation was made in view of the decision taken in Choudhary- Textil Mil/ Ltd. v. Central Board of Revenue (PLD 1976 Lah. 1392) and in Commissioner, Khairpur Division v. Ali Sher (PLD 1971 SC 242).
4. There is another aspect of the case. The C.P.C. Has been made applicable to Kalat w.e.f. 21st June, 1960 therefore, provisions of Orders XXXVIII and XXXIX, C,P.C. Have been made applicable to this area since then. A Court taking cognizance of the matter on civil side is 1A therefore, authorised to pass an interim order as laid down in order XXXVIII or XXXIX. C.P.C. In such circumstances there is no force in this revision, the same is dismissed with costs.
MUHAMMAD JAFFAR NAIM, J.-I had the privilege of going through the order written by my learned brother Abdul Qadeer, J. In this case points required to he considered are as to whether a Court authorised to receive plaints under Dastur-ul-Amat Diwani, Kalat could make an order for interim relief or not, and as to what would be the forum for trial of civil suits where one of the parties was a Hindu. We have heard the counsel of the parties. The counsel of the petitioner had contended that Hakim-a-Adalat under the Zabita Amal Diwani, 1852 was an officer authorised to receive plaints, call for the written statement and frame issues on such pleadings. According to him the Zabita Amal Diwani does not assign any judicial function to Hakim-a-Adalat and such functions are to be exercised by the Kazi alone who after the trial is competent to pass a decree and dispose of the case finally,
2. Section 2 of the Dastur.Ul-Amal Diwani provides for the presentation of the plaints in a Court of competent jurisdiction. Sec.-ion 20 of the same Zabita circumscribes the limits of function of various Courts to whom plaints can be presented according to Section 2 of the Zabita. These Courts are the Courts of the Taib Tehsildar, Tehsildar, the Nazim and formerly the Wazir-a-Adlia and now the Deputy Commissioner. The word "Court" used in subsection (2) means the Courts specified in section 20. It will show that the officers shown in Section 20 are Courts for certain specialized purposes under the Zabita.
3. After the institution of the suit that Court specified in section 2 would summon the defendant, receive written statement and frame issues. Section 3 provides that the Presiding Officer of the Court could examine the plaintiff for elucidation and verification of facts and the contents of the plaint. These functions are similar to the functions of the Court under Order X, C.P.C. Section 6 of the Zabita Amal Diwani authorises the said Court to proceed ex parse again3t the defendant in case the defendant is absent inspite of service of summons. He has also the authority to set aside the order of e.v parte proceeding. In case such officer decided to proceed ex parse it could be presumed logically that he had the jurisdiction to pass an ex parte decree other--were the provisions of Section 6 of the Zabita Amal D;wani would be meaningless. Section 7 of the Zabita Arnal Diwani introduces the Court of the Kazi (Sharia Aawar Mutaliqa) only after written statement had been filed and issues have been named. A suit instituted in the Court of an officer under Section 2 of the Zabita could not be referred to the Kazi for decision unless it had reached the stage shown in section 7 of the Zabita.
4. Again, section 11 of the Zabita lays down that the Hakim would make an effort at conciliation or arbitration. In case the matter relates to customs the Hakim would try to get it resolved through a Jirga. If the matter could be settled by a compromise or arbitration it would toot be referred for decision to the Kazi concerned and it can be read in this provision that the Hakim is competent to get the matter so decided without even referring to the Kazi. This is a stage in the proceedings prior to the trial of the suit in the Court of Kazi.
5. Section 23 of the Zabita provides appellate forum from the decision of Naib Tehsildar, Tehsildar, Nazim and Deputy Commissioner while section 24 provides appellate forum from the decision of Kazi and Majlis-e-Shoora. If the Courts shown in section 23 of the Zabita could not decide a case .The provision regarding appeal would be redundant. Provision of appeal pre-supposes that in certain circum--stances the Courts specified in section 23 of the Zabita could make a decision.
Such decision is not ministerial or executive action. It is a decision which cannot be done otherwise than in a judicial process. This assertion also supports the contention that functions of the Tehsildar or the Nazim or for that matter the Deputy Commissioner are not simply ministerial or executive in nature. They have been assigned judicial role to play in the administration of civil justice and therefore they are Courts for practicals purposes though such functions are exercisable at a particular stage of the proceedings.
6. The provisions of the Zabita Amal Diwani provide two different stages of the suit, one is that provided under section 20 and the other one provided under section 7 of the Zabita Amal Diwani.
They have been assigned various judicial functions. A Kazi does not have jurisdic--tion to entertain or decide a case unless it is referred to him by the Hakim after framing of the issues but once tile case is referred to the Kazi by the Hakim, the Hakim ceases to have jurisdiction in respect of the matter so referred. If a case can be disposed of otherwise than on decision on issues and recording of evidence it could be disposed of by the Hakim without reaching that stage when it is referred to the Kazi. The whole scheme of the Act and provision of appeal in respect of decision by the Hakim leave no doubt that the Courts specified under section 20 of the Zabita Amal Diwani have been assigned judicial function and are Courts for all practical purposes until the case is referred to a Kazi under section 7 of the Zabita.
7. Taking a hypothetical case of a suit being instituted before the Hakim and after an interim order in the nature of one provided under Order XXXVIII, Order XXXIX or Order XL of the C. P. C. Is made and such suit is compromised before the filling of the written statement or framing of the issues. The stage would not arrive when the Kazi comes into the picture. There should be some body to grant the interim relief in such cases where the object of the suit would be frustrated in case such interim relief is not granted. It cannot be presumed that law would not provide such a contingency as long as the suit is within the Court of the Hakim and has not been referred to the Kazi, the Hakim has jurisdiction to perform all such actions as are necessary to grant interim/main relief., His competency to grant interim relief or make interlocutory order is' inherent. The main relief claimed in the suit can be granted by the Hakim in case of compromise or arbitration and by the Kizi in case of, decision upon the issue on the basis of evidence led by the parties. Tae Hakim and the Kazi have alt the judicial powers of a Court within their respective spheres and discharge those functions according to the requirement of the case. It cannot be argued that function of the Hakim are merely ministerial in nature under the Zabita Amal Diwani. Since he possesses powers to decide a case in certain circumstances and is competent to grant ex parte decree or get the dispute settled by compromise or arbitration, he would be deemed to possess all the incidental powers necessary for the purpose and in aid of granting the substantial relief. The arguments of the learned counsel of the petitioner have therefore no force. Since these officers are the Courts and so for this reason also they can perform those functions which are exercisable by a Court under Orders XXXVIII, XXXIX and XL, C. P.C. And perform such other acts which are necessary for the progress for a suit up to the stage that they are possessed of the case.
The next question to be determined is as to what would be the forum in case one of the parties to the suit is non-Muslim. Section II of the Zabita Amal Diwani lays down that where the Hakim finds that the matter is such that the decision of the case should be got through a Jirga and when the parties are Hindus, the Jirga or the Panchayat to which such matter is referred should consist of equal number of Hindus. In such a case the final order could be passed by the Wazir-a-Azam and now by the High Court. Section I1 is the only provision of Zabita Amal Diwani which makes any reference to Hindus. H A suit where parties are Hindus could be referred to a Jirga which consisted of equal number of Hindus as members. There is no other provision in the Zabita Amal Diwani where any distinction has made in the procedure or the jurisdiction of the Court of Hakim or the Kazi in trial of suits of Hindus. Even if the parties are Hindus and in the opinion of the Hakim the matter is not such that should be decided by reference to a Jirga, the procedure prescribed for trial of suits by Kazi for Muslims would apply A suit where parties are Hindus would also be tried under section 7 of the Zabita Amal Diwani and there is no separate procedure prescribed. If a separate procedure for trial of suits when parties were Hindus was intended, such provision could be made in section 7 of the Zabita and not under section 4 of the same. In the present case the Kazi had jurisdiction to try the suit under section 7 of the said Zabita and it was wrongly referred by the Hakim to the High Court under Section 11 of the Zabita since there is no findings of the Hakim that the suit should be disposed of by reference to Jirga or Panchayat.
9. A decision of Tehsildar or Assistant Commissioner is appealable udder Zabita Amal Diwani, Kalat.
Appeal against the judgment and decree from the Court of Kazi would lie to the Majlis-e-Shoora.
Second Appeal to the High Court. Section 23 has made orders of the Naib Tehsildar, Nazim, and the Deputy Commissioner appealable to the next officer in that judicial tier. If the petitioner was aggrieved by an order by the Assistant Commissioner he could file an appeal under section 23 of the Zabita to the Deputy Commissioner concerned. Section 1 5, C. P. C. Would only come into operation if no appeal was provided from an order in a case decided by the Nazim (Assistant Commissioner). For this reason as well as the petition filed is not competent and is liable to be dismissed.
10. The petition is, therefore, dismissed and case referred by the Hakim D. C. Will be returned to him to be tried according to law.