' In this case respondent-plaintiff Allah Ditta filed a suit for declaration that the order of confirmation of the Scheme in consolidation proceedings and the subsequent orders passed by the Consolidation authorities in appeal and revisions were based upon fraud and misrepresentation and were illegal and ineffective against his rights and for grant by way of consequential relief of permanent injunction restraining the defendants from interfering in his possession of the suit land in any manner and for grant of mandatory injunction directing the said consolidation authorities to correct the revenue record accordingly. The particulars of the fraud were, given in the plaint. The fraud alleged therein was that a compromise had been reached between the said respondent-plaintiff and his brother Ali Muhammad respondent-defendant on the one hand and respondent-defendant Allah Ditta on the other hand and resolution No, 6 to that effect was incorporated in the Register of Resolutions and the plaintiff affixed his thumb- impression and obtained a copy of the revenue record. Later, however, Aminullah Chaudhry was posted as Deputy Commissioner, Sheikhupura and at his instance a fictitious resolution was incorporated in the relevant register instead of the original resolution and taking undue advantage of this forgery, the laud was allotted to Mst. Ahmad Begum deceased daughter of Muhammad Amin who was the paternal aunt of Mr. Aminullah Chaudhry, the then Deputy Commissioner, Sheikhupura and that the so-called resolution No, 6 did not bear the thumb-impression of the said respondent-plaintiff and his brother Ali Muhammad as proved by the report of Finger Print Bureau and the said resolution was forged and fabricated and undue advantage had been taken by Mst.
Ahmad Begum with the help and connivance of the Deputy Commissioner, Sheikhupura and his subordinate field staff. It was also contended that Consolidation Scheme had been confirmed behind the back of and without hearing the petitioner and one Ahmad Ali who was said to have signed the register scheme was neither authorised by him to sign the register scheme on his back nor was he informed of the date of confirmation of the scheme and, therefore, proceedings were conducted in clandestine manner and allotment of land to defendant Ahmad Begum were procured through fraud and misrepresentation.
2. Before the trial the petitioners-defendants filed an application under Order VII, rule 11 (h), C. P. C.
For rejection of the plaint on the ground that according to section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960, reproduced below:- "No civil Court shall entertain any suit or application to obtain a decision or order in respect of any matter which Government or the Board of Revenue or any Officer is by this Ordinance, empowered to determine, decide or dispose of." ' the civil Court had no jurisdiction, to entertain the suit concerning consolidation proceedings. The Civil Judge, Sheikhupura by his order dated 3-2-1981, dismissed this application on the ground that as there were allegations of forgery and fabrication of the relevant record which if proved would obviously lead to the legal conclusion that whatever flowed therefrom is null and void and since fraud vitiates all proceedings, in such circumstances even formal barring of civil Court jurisdiction would not stand in its way. The petitioner filed an appeal against this order which was dismissed by Additional District Judge, Sheikhupura, on 28-6.1982, on the ground that no appeal was competent against the said order and he was not inclined to treat the said appeal as a revision. This is a revision against the said order passed by Additional District Judge, Sheikhupura.
3. Since the appeal before the Additional District Judge was incompetent and he had declined to treat the same as revision, in my view the present revision against the order dated 3-2-1981 of the Civil Judge is competent under section 115, C. P. C. Subsection (3) of which postulates that a revision A petition entertainable by District Court under subsection (2) of section 115, can be made to High Court as well In this view of the matter, I entertain this petition as a revision petition against the order dated 3-2-1981 of the Civil Judge, Sheikhupura.
4. In this revision against the said order dated 3-2-1981 dismissing the application of the petitioner for rejection of the plaint under Order VII, rule 11 learned counsel has raised the following questions:-
(I) That the consolidation authorities are competent to decide the question as to whether an order had been obtained by fraud. Therefore, under said section 26 of the Ordinance, the jurisdiction of the civil Court stood excluded.
(ii) That at any rate no fraud has been alleged in the plaint to the proceedings before the Commissioner and the Board of Revenue and under the Ordinance these orders have attained finality and section 26 of the Ordinance is a bar to the jurisdiction of the civil Court. Section 11 providing for an appeal against the consolidation authority and section 13 providing for a revision fully empower the statutory authorities to give a finding on any plea including the plea of fraud raised in appeal or revision. These remedies were availed of by respondent No. 1 and from perusal of the plaint it appears that the plea of fraud was rejected by appellate and revisional authorities and for this reason too civil Court had no jurisdiction to decide this suit.
(iii) That the impugned order is contrary to the law declared by the Supreme Court Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 (145) to the effect that suo moto revisional jurisdiction of the Member, Board of Revenue under section 24 of the Consolidation. Act, 1939, which after its repeal was preserved by section 13 of 1960 Ordinance, was a vast jurisdiction which transcended any other jurisdiction under the statute.
5. Before I attempt to examine the said contentions I think a general view of the case-law on the subject may be of great advantage. It may be noted that it was held in Grindlays Bank Ltd. v.
Murree Brewery Co. Ltd. (1), that in law a judgment or order, however, exclusive the jurisdiction of tribunal determining it may be, is a nullity if it be proved that it was obtained by fraud. It was further held that this fraud may be proved also in a suit to set aside that judgment or order and since the fraud vitiates all proceedings, a lower Court in a suit properly instituted is competent to set aside a judgment even of a higher tribunal if it is proved that it was obtained by fraud. Again, in the case of Hakim Abdur Rahim Khan and 3 others v. I. S. A. (2), it was held that a judgment or order, however exclusive jurisdiction of the said Tribunal may be, is a nullity if it was proved that it was obtained by fraud. The word exclusive is signigificant in this context as it postulates that the jurisdiction of civil Court was excluded in the matter. Again in case of Hamid Husain v. Government of West Pakistan and others (3), it was held that it is well-settled that even where jurisdiction of civil Court is barred and conferred upon the special tribunals the civil Courts being' Courts of ultimate jurisdiction will have jurisdiction to examine acts of such forums to see if they are in accordance with law, or illegal or even mala fide. ' in the light of the principles laid down in the above cases, it is clear that even if the jurisdiction of the civil Courts is barred as laid down in section 26 of the Ordinance, when an allegation is made in a suit that the decision has been obtained by fraud and mis-representation the civil Court of plenary jurisdiction has the authority to enquire into the question as to whether the decision of the special tribunal is not based upon fraud and if it comes to the, said conclusion, it has the jurisdiction to declare the order of the said special, tribunal to be void.
6. As already shown, the suit in the present case had been filed for declaration and for grant of a permanent prohibitory injunction and permanent mandatory injunction on the ground of fraud and misrepresentation. Learned counsel has conceded that for the purpose of decision under Order VII, rule 11, C. P. C. The averments made in the plaint alone had D to be seen. In this view of the matter, since fraud is alleged in th plaint, the civil Court had got the jurisdiction to decide the case. {{FOOT NOTE}}
(1) PLD 1954 Lah. 745 (2) PLD 1973 Lah. 652
(3) 1974 SCMR 356 {{FOOT NOTE}}
7. It may also be. Noticed that it was held by their Lordships of the Supreme Court in case of Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (1), that with respect of mala fides, the jurisdiction of the civil Court can never be taken away, for, a mala fide act is in its very nature an illegal and void act and civil Court can always pronounce an act to be mala fide and therefore void. This observation was made in a settlemen case in which jurisdiction of civil Court was barred by sections 22 and 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Mala fides is a necessary ingredient of fraud which has been alleged in the plaint of this case. Moreover, the mala fides in regard to allotment of land in consolidation proceedings and in regard to subsequent proceedings before all the higher Consolidation authorities were alleged in ground No,
(x) and para. 14 of the plaint. The jurisdiction of the civil Court, therefore, did not stand excluded.
Furthermore, in case of Zafar-ul-Ahsan v. The Republic of Pakistan (2), following observations were made:-- "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omission or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of Law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."
' From the allegations made in the plaint, it is clear that it was being alleged therein that the decisions of. Consolidation authorities being mala fide, the Consolidation Ordinance had been used merely as cloak to cover an act which in fact is not taken though it purports to be taken under it. For this reason too, the civil Court was not barred from hearing this suit.
8. Now turning to the specific point raised by the learned counsel for the petitioner at Serial No. 1 above, it is clear that the bar against a civil Court entertaining a suit as prescribed in section 26 of the Consolidation Ordinance, 1960, is in respect of matters which any consolidation authority is empowered by the said Ordinance to determine, decide or dispose of. It is also clear that the said Consolidation Ordinance gives certain rights and provides specific machinery for enforcement of those rights. It is not, however, provided in the Ordinance that the determination of question of existence of fraud or otherwise in procuring a decision is a right created and determinable by the said Ordinance. Even if incidentally in order to decide the matters relating to rights determinable by the said Ordinance, the consolidation authorities have to give a finding on the question of existence or otherwise of fraud in procuring a decision, such a finding is not a finding on a matter falling within the ambit of said section 26, so {{FOOT NOTE}}
(1) PLD 1965 SC 698 (2) PLD 1960 SC (Pak.) 113 {{FOOT NOTE}} as to exclude the jurisdiction of the civil Court. Such a finding is subject to the decision of the civil Court which is a Court of plenary jurisdiction and can decide all matters raised before it. The question of existence or G otherwise of fraud in consolidation proceedings was thus not excluded from ambit of powers of a civil Court by virtue of section 26 of Consolidation Ordinance. The said first point has, therefore, no substance in it.
9. As for the next point, I have perused copy of the plaint of the civil suit which has been filed by the learned counsel for the petitioner on the record of this revision. On its scrutiny, I find it difficult to accept the contention of the learned counsel for the petitioner that it contains no objection regarding invalidity of the orders passed by the Commissioner as well as the Board of Revenue on the ground that they had been procured by fraud and mis-representation or that the plaint showed that any such plea was expressly rejected by the Commissioner and Board of Revenue.
Para. 8 and Ground No, (vii) and (ix) of the plaint clearly allege that orders of Commissioner and Board of Revenue were all based upon a forged Resolution No, 6 which had been substituted for original resolution showing the original compromise and were as such vitiated. It is, therefore, clear that the plaint objected to the decision of the Commissioner and the Board of Revenue also as decisions procured on the basis of fraud. Point No, 2 is thus also without substance.
10. As for Point No, (iii), the observation appears to have been made by their Lordships of the Supreme Court on the basis of the facts of that case. It was claimed in that case that the revision brought before the learned Member, Board of Revenue was directed against the appellate order of the Commissioner dated 16-5-1960 which remanded the case to the Collector only to enable him to decide the question of limitation and, therefore, the learned Member Board of Revenue had acted without jurisdiction in having re-opened the entire case for decision on merits thereby short- circuiting the jurisdiction of the Collector and the Commissioner. Their Lordships of the Supreme Court held that in spite of remand by the Commissioner only on the point of limitation, the Member, Board of Revenue had under section 24 of Consolidation Act, 1936, power to call for the record and decide the case on the basis of all its aspects. It was in this context that their Lordships of the Supreme Court observed that revisional jurisdiction of Member, Board of Revenue transcended any other jurisdiction under the Statute. Their Lordships were comparing the appellate jurisdiction of the Commissioner with the revisional jurisdiction of Member, Board of Revenue under Consolidation Act, 1936. The present is, however, a different case. The learned counsel could not have quoted it to exclude the jurisdiction of civil Court which is not a jurisdiction under the Consolidation Act or.
Ordinance. In this view of the matter, this point has also no merit and the same is repelled.
11. For the foregoing reasons, I am of the view that the order of the civil Court dismissing the application of the petitioner for rejection of the plaint under Order VII, rule 11, C. P. C. Is unexceptionable. This revision is, therefore, dismissed in limine.