SHAHID BILAL HASSAN, J. Facts, in precision, are as such that the petitioners instituted a suit for declaration maintaining that their father Mallu Khan was owner of the land measuring 1017-Kanals 06-Marlas falling in Khewat No.33 situated at Malkhoke as per Misl-e-Haqiat Consolidation 1963- 64 District Lahore; that the land measuring 553 Kanals was allegedly shown to be transferred in favour of respondents Nos.1 and 2 vide mutation No. 259 dated 05.11.1965; that land measuring 250- Kanals was allegedly shown to be transferred in favour of respondents Nos.1 and 2 vide sale deed No.15965, thereafter mutation No.261 dated 04.11.1964 was incorporated in the revenue record; that total land measuring 803-kanals 14- Marlas was, purportedly, illegally and fraudulently transferred in favour of the respondents Nos. 1 and 2, however, the petitioners are allegedly still enjoying the possession of the suit property; that the respondent No. 2 made many alleged illegal transactions and finally the property was transferred in favour of the respondent No. 13 illegally and unlawfully.
The respondent No.13 appeared in the suit and orally prayed for rejection of the plaint by taking a stance that the suit of the petitioner(s) is barred under sections 12, 13, and 17 of the Undesirable Cooperative Society Act, 1993. The learned trial Court vide impugned order dated 04.07.2017 rejected the plaint. The petitioners being aggrieved of the same preferred an appeal but it was dismissed in limine vide impugned judgment and decree dated 20.09.2017; hence, the instant revision petition.
2. Heard.
3. Section 9 of the Code of Civil Procedure, 1908 reads:- '9. Courts to try all Civil Suits unless barred. - The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.'
In the present case, the respondent No. 13 asserted before the learned Courts below as well as before this Court that section 17 of the Undesirable Cooperative Society Act, 1993 bars the jurisdiction of civil Court to try the suit. For ready reference the same is reproduced as under:- 'Save as otherwise provided in this Act, no court shall have jurisdiction in respect of any matter, which a co-operatives board and the co-operative judge are empowered by or under this Act to determine and no injunction or process or order shall be granted by any court or authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act. '
However, when the contents of the plaint are gone through it appears that the petitioners have alleged fraud and forgery, mainly committed by the respondents Nos. ,1 anu 2 and action of the respondent No.13 has been challenged, rather it has been pleaded that the land measuring 553 Kanals was allegedly shown to be transferred in favour of respondents Nos. 1 and 2 vide mutation No.259 dated 05.11.1965 and the patch of land measuring 250-Kanals was allegedly shown to be transferred in favour of respondents Nos. 1 and 2 vide sale deed No.15965, thereafter mutation No.261 dated 04.11.1964 was incorporated in the revenue record, which was illegally and fraudulently transferred in favour of the respondents Nos. 1 and 2 as contended by the petitioners and the petitioners are purportedly still enjoying the possession of the suit property. It was further pleaded that the respondent No.2 made many alleged illegal transactions and finally the property was transferred in favour of the respondent No.13 illegally and unlawfully. In such scenario, the alleged bar contained in section 17 of the Act, 1993 ibid cannot take away the plenary jurisdiction enjoined upon the civil Court under section 9, C.P.C. in a situation where the aggrieved person finds himself remediless, particularly, when a dispute requires detailed evidence in order to resolve a factual controversy, as in the present case, because a specific plea of fraud and forgery has been pleaded. In the present case, at the cost of repetition, the main grievance of the petitioners is against the respondents Nos. 1 and 2 and not against the respondent No.13, therefore, the barring section of the Act, 1993 does not debar the suit of the petitioners. In Messrs Sui Northern Gas Pipelines Limited (SNGPL) v. Messrs Noor CNG Filling Station (2022 SCMR 1501), the Apex Court of the country has invariably held that:- '10. The question of implied bar has been raised in this Court for the first time and nothing was pleaded in the Trial Court, Appellate Court and the High Court. Under Section 9 of C.P.C., the Civil Courts have the jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The congregated in 'a routine, save as the conditions laid down are fulfilled. The presumption of lack of jurisdiction may not be gathered until the specific law enacted by the legislation debars Court from exercising its jurisdiction with specific remedy within the hierarchy which may attain the finality of order or the controversy involved.'
4. Pursuant to the above discussion, it is observed that in the matter in hand, the civil Court has jurisdiction to entertain the suit. The learned Courts below have failed to rightly construe law on the subject and have to appreciate the law on a true perspective. Therefore, the impugned orders and decrees cannot be allowed to hold field further. Resultantly, by allowing the revision petition in hand, the impugned orders and decrees are set aside and case is remanded to the learned trial Court to decide the same afresh after obtaining written statement(s), framing of issues and recording evidence of the parties, on merits, in accordance with law, No order as to the costs.
5. The adversaries are directed to appear before the learned trial Court on 20.10.2022, positively.