This second appeal is directed against the judgment and decree dated 18th February, 1974 dismissing the appeal filed against the order dated 11 October, 1973 rejecting the plaint as disclosing no cause of action.
2. The appellant was an owner of 519 kanals 3 marlas of land in village Khanpur, Tahsil Bhakkar which was said to have been acquired by the respondent Thal Development Authority, but the adjustment formula was wrongly applied with the result that the appellant was given in return an area of 116 kanals less than his entitlement. Being in possession he, therefore, filed a suit for perpetual injunction restraining the respondent Authority from interfering with his possession. The averments were denied by the respondent authority in their written statement dated 30th April, 1973 and also contested the prayer for temporary injunction. The suit was still in the initial stage that the Court framed a preliminary issue whether the plaintiff had a cause of action. The parties however did not lead evidence and the trial Court, after, hearing arguments from the parties found that by virtue of section 2 of the Thal Development (Vali--dation) Ordinance (XV of 1971) the acquisition of land before the year 1955, as in the instant case, could not be called in question in any Court. It was held that no cause of action thus accrued to the appellant and his plaint was, therefore, rejected. An appeal was made to the learned Additional District Judge, but with no success. The order of the trial Court was maintained in view of the amending Ordinance XV of 1971.
3. It is a common point that the Provincial Government has to direct the acquisition of the land under section 36 of the West Punjab Thal Development Act (XV of 1949) by the Authority for the re- settlement of refugees as defined in the Pakistan (Economic Rehabilitation) Ordinance (XIX of 1948) or any other purpose for inclusion in a scheme under section 21. It is further provided that after theth issue of a notification the Authority would apply to the Collector, who after adopting a parti--cular procedure would deliver possession of the land and the same would vest absolutely in the Authority free from all encumbrances subject only to payment of compensation.
4. Different press notes and the Scheme to be prepared under section 21 of the Act for development have found out some adjustment formulae which have been now pressed into service to show that the plaintiff-appellant was entitled to return of more area than it was being given to him.
According to an unreported case, namely, Hakeem Abdur Rahim and others v. The Punjab Government and another (Writ Petition No. 273 of 1962 decided on 12th January, 1972), the position has been radically altered by the promulgation of the Thal Deve--lopment (Validating) Ordinance (XV of 1971). Section 2 of the Ordinance provides that Notwithstanding anything to the contrary contained in the Thal Development Act, 1949 or the Thal Development (Amendment) Act, 1955 (since repealed by the West Pakistan Repealing Ordinance 1970) or in any decree, judgment or order of any Court or authority, or in any proceedings pending before any Court or authority, any land or right acquired by privilege accrued to or liability or obligation incurred by the Thal Development (Amend--ment) Act. 1955 shall be deemed to have been validly acquired, accrued or incurred, as the case may be."
5. It was held in that case that the obvious effect of this section is that once it is found that the land had been validly acquired in terms of the Thal Development Act of 1949, then its validity is not to be effected by any claim made or arising under the amended provisions introduced in 1955 by Act XX of that year. Some cases were already pending when the Provincial Government promulgated Ordinance XV of 1971 with the clear intention of nullifying the effect of the earlier judgments and other proceedings of similar nature as well as of the concessions granted by the Thal Development (Amendment) Act, 1955.
6. This view is supported by a fatuous decision in Messrs Mamukanjan Cotton Factor v v. The Punjab Province (PL D 1975 SC50) that Legislature is competent to legislate on a particular subject to undertake any remedial or curative legislation after discovery of defect in an existing law as a result of the judgment of a superior Court in exercise of its constitutional jurisdiction. It cannot be ignored that the remedial or curative legislation is also the "end product" of constitutional jurisdiction in the cognate field. It is, therefore, the necessary intendment of the amending provision contained in section 2 reproduced above that right of a party to question his right to get a proportionate return of land has been taken away by section 2 of the Thal Development (Validating) Ordinance (XV 1971), and the Courts below were justified in holding that the plaint did not disclose a cause of action and for that reason it was liable to be rejected and had validly been rejected.
7. In one of the cases R.S.A. 531 of 1972 It was also argued that the lear--ned trial Court rejected the plaint but did not take the trouble to frame an issue. It appears that no such issue was franked but the a was not needed. The parties were fully aware of their case and they knew what proposition of law was raised in the suit. The issue even if framed would in no manner attract the production of evidence. It has not been urged that the appellant in that case had been derived of arguing his view point on the rejection of plaint. The fact that an issue about the maintainability of the suit was not framed was all immaterial. The objection is thus repelled.
There is no force in the appeal and the same is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.