1. Succinctly, facts of the case are that the appellants filed a suit for declaration under Section 11 of the Punjab Waqf Properties Ordinance, 1979 (Hereinafter called the Ordinance) challenging the validity of Notification No. SOP-4(85)A/2005, dated 20.11.2003. Alongwith the suit an application for temporary injunction with regard to land measuring 321 kanals 9 marlas 182 sq.ft. was also moved which was dismissed by the learned trial Court vide order dated 08.09.2016 while observing that Section 13 of The Ordinance created bar on jurisdiction of the Court regarding grant of temporary injunction and dismissed the said application without notice to the respondents-defendants. The vires of said order has been assailed through instant appeal.
2. 2.Learned counsel for the appellants contends that impugned order is not sustainable under the law as it is passed without proper application of judicious mind. Further contends that the learned trial Court was within its jurisdiction to proceed with the application, conduct proceedings, hear arguments and then decide the application on merits but committed error in law and passed the impugned order. Learned counsel for the appellants submits that the Civil Courts being Courts of ultimate jurisdiction have jurisdiction to examine acts of such forums to see if these are in accordance with law, illegal, or mala fide.
3. 3.Learned law officer assisted by learned counsel for Auqaf Department while opposing instant appeal contends that the learned trial Court has passed the impugned order in accordance with law which is not open for any interference.
4. 4.I have heard learned counsel for the parties and perused the record as well as relevant provisions of law:
5. Having given careful consideration and going through the dictum laid down in "Hamid Hussain v.
5. Government of Pakistan and others" (1974 SCM R 356) fact is very clear that on the basis of doctrine of judicial review that Civil Courts being Courts of ultimate jurisdiction can take cognizance of the lis and determine the rights of the litigants if the same are being hit under some mala fide act and intention of any forum/government departments/functionaries or individuals. The relevant portion of which is reproduced hereunder: "It is well-established principle that even where the jurisdiction of Civil Courts is barred and conferred upon special tribunals, Civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide".
6. 6.Civil Courts are Courts of ultimate jurisdiction regarding protection of civil rights of the citizens can/shall definitely interfere into any act or order taken/passed by a forum which is tainted with mala fide, or against principles of law, equity and natural justice.
7. 7.It may be observed that entire judicial set-up is meant to provide redressel/justice to the real aggrieved person(s) and it is not proper to non-suit litigant on technical grounds. Of course, it is discretion of the learned trial Court to grant or refuse request for grant of temporary injunction but declining the same on technicality is not appreciable. It would be more appropriate and serving proper administration of justice that both the parties be given an opportunity of hearing and then the matter be decided on merits.
8. It maybe added here that the vires, legality and effectiveness of the notification issued by Auqaf Department under Section 7 of The Ordinance as a whole is to be decided by the District Courts (acting as Civil Courts) while entertaining grievances voiced under Section 11 of The Ordinance (by filing a petition). If the ultimate adjudication is lying with the said Court the temporary injunction on the basis of judicial review should also be carried out by the same Court, therefore, this Court is of the firm view that the impugned order which was passed without fulfilling legal requirements i.e. pleadings and hearing the parties concerned, is not sustainable and is liable to be set aside.
9. 8.In view of the above, while allowing instant appeal order impugned dated 08.09.2016 passed by learned trial Court is set aside and application for temporary injunction is deemed to be pending before the trial Court who is directed to proceed therewith in accordance with law and them decide the said application strictly on merits.
10. 9.There is no order as to costs.