This revision application is directed against the order of the Senior Civil Judge, Hyderabad, dated the 20th of December 1966 by which he dismissed the application of the present applicant and other members of his joint family under Order VII, rule 11, C. P. C. dated the 10th of November 1966.
2. The facts, which form the background briefly stated, are that the applicant and his family are rich landlords and businessm en. According to Mr. A. H. Pirzada they own about 18,000 acres of land, 60 or 70 urban immovable properties, ginning factories etc. After Partition, complications arose with regard to their status and the character of their property with consequence that litigation has been spread over a long period of time. The present dispute has arisen on account of ejectment proceedings filed by the family of the present applicant with respect to a building known as 'Cement Building' bearing No, D/66-891, Station Road, Hyderabad. It is a huge building in one room of which the respondent lives. He has been served with a notice of ejectment ; therefore, he has raised disputes with regard to the right of the family of the present applicant to do so.
3. He has filed a suit bearing No, 217 of 1966 and asked for several reliefs which are stated in the plaint under the heading `Prayer' as follows :- "The plaintiff's pray that this Hon'ble Court may kindly pass the decree and judgment as under :- (a)The order of the Custodian declaring Messrs Pehlumal Motiram as non-evacuee in review after that they have been declared evacuee by Mr. Justice Lad first Custodian and partition order obtained from Deputy Custodian dated 24-12-1959 are nullity in law and are not binding on the Court or upon any interested and aggrieved persons as they were obtained through fraud and mis-statement of facts.
(b)All the subsequent orders passed by subordinate Custodian and Settlement are also nullity in law as they are based upon first order which were obtained through misrepresentation and fraud.
(c)The illegal occupation and allotment of office premises of the building in suit under the order of the Director of Excise and Taxation Department, defendant No, 2, after being vacated by the Government all are nullity in law without jurisdiction.
(d)The defendants are prohibited from action and enjoying the above orders of the Deputy Custodian and Settlement Department in favour of defendant No, 1.
(e)Defendants shall pay the cost of the suit as they are nullity in law."
In the body of the plaint he has alleged that there was fraud in consequence of which the family of the present applicant managed to obtain a declaration that it was not an evacuee family with the result that the property of the family is also being claimed by the family to be non-evacuee.
4. He has impleaded the joint Hindu family as defendant No, 1, several officers of the Excise and Taxation Department as well as the Chief Settlement Commissioner and the Custodian. The suit was filed in October 1966 and is being contested by the Joint Hindu family who is defendant No,
1. In November 1966, an application was made on behalf of defendant No, 1 under Order VII, rule 11, C. P.
C. with a prayer that the plaint be rejected because it disclosed no cause of action to the plaintiffs, no cause of action was disclosed in terms of Order VI, rule 4, C. P. C. and the suit was barred in terms of section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, as well as in terms of Article 95 read with section 3 of the Limitation Act.
5. The learned Senior Civil Judge heard the parties and dismissed the application mentioned in the beginning of this judgment vide his order dated the 20th of December 1966, as already stated.
6. Counsel for the applicant has advanced four arguments against the order of the learned Senior Civil Judge and in support of this revision application. They are as follows (1)No cause of action is disclosed in the plaint.
(2)No cause of action has been disclosed in terms of Order VI, rule 4, C. P. C.
(3)The suit is barred by section 41 of Act XIII of 1957.
(4)The suit is barred by Article 95 of the Limitation Act.
7. Before proceeding further let me state that under Order VII, rule 11, C. P. C. a suit is not dismissed but the plaint is merely rejected. This makes a big difference with respect to the consequences that follow. Moreover, in asking the Court to reject a plaint under this provision the defendant must be taken to admit for the sake of argument that the allegations of the plaintiff made in the plaint are true in manner and form. The Court should reject the plaint under this provision only if it comes to the conclusion that even if all the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief. Here it is also important to distinguish Order VIE, rule 11 from the locus standi of the plaintiff and the jurisdiction of the Court.
8. Taking up now the contentions one by one I may point out that the first contention is really made up of two objections. One is that there is no cause of action and the other is that no cause of action accrued to the plaintiff. In so far as the interest of the plaintiff is concerned, he is undoubtedly interested in retaining the possession of the premises which he occupies and for doing so, to raise all kinds of legal contentions, which may be available to him. As to the disclosure of the cause of action, it is clearly to be found in the plaint, because the plaintiff is sought to be ejected, which attempt he wants to resist, and the other is that according to him, the position which defendant No, 1 has claimed is the result of a fraud practised on the Custodian's Department. Whether the allegations are right or wrong is not a matter for examination at this stage.
9. The first contention is linked up with the second contention, because the second contention is that necessary particulars of fraud have not been supplied. Counsel has rightly referred to Order VI, rule 4, C. P. C. in order to explain this stand, but the reference to that provision means that in reality it is the violation of that provision which is in point. The view of the trial Court is that sufficient particulars of fraud have been supplied. Counsel for the applicant has read out paragraphs Nos, 1, 2, 3, 4 and 5 of the plaint and the impression, which they have created on my mind, is that there is no reason to disagree with the view of the trial Court in this respect. If, however, a question arises that the particulars which have been supplied, need to be supplemented, then there are provisions in the Civil Procedure Code which can be invoked for eliciting more information from the plaintiff.
The third contention of counsel for the applicant is that the suit is barred by section 41 of Act XII of 1957. The section is as follows :- "41. Jurisdiction of Courts barred.--(1) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction.
(a)to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property ; (b)to question the legality of any thing done under this Act by or at the instance of the Custodian, or (c)in respect of any matter which the Custodian is empowered by or under this Act to determine.
(2)Whenever any question such as is referred to in clause (a) of subsection (I) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive.
(3)No decision, decree or order of any Court or authority in respect of any evacuee or evacuee property passed between the first day of March 1947, and the fifteenth day of October 1949, shall be binding on the Custodian or affect any right or interest of an evacuee in any property affected by such decision, decree or order unless it is accepted or approved by the Custodian.
(4)No Court or other authority shall be competent to grant an injunction or other order in relation to any proceeding before the Custodian under this Act, or anything done or intended to be done by or at the instance of the Custodian under this Act.
(5)Nothing in the foregoing subsection shall prevent the adjudication by a civil Court or a dispute between evacuees relating to a right in evacuee property upon a reference made to it by the Custodian or with the Custodian's previous approval."
Counsel for the applicant has placed reliance particularly on clauses (a) and (b) of subsection (1) and on the whole of sub section (2) and has contended that in terms of these provisions it is necessary that whenever a question arises as to whether any person or property is evacuee or not, it becomes incumbent on the Court or the authority before whom such question arises, to refer the question back to the Custodian. Counsel has further contended that the legality of nothing that has been dealt with by the Custodian under Act XII of 1957, can be questioned by a civil Court or by any other authority; therefore, ordinarily a suit is not maintainable before a civil Court for obtaining a declaration that any particular person or property is or is not evacuee person or property. The reply of Maulana Abdul Quddus Behari, to this argument is that the Supreme Court has observed in Pakistan v. R. S. Roopchand as follows : "It may be open to an interested party to move for re-examination of the whole case and the allegation of fraud before the proper forum."
He contended that if he was able to satisfy the Court that he was an interested party and that the civil Court was the proper forum, then the suit should be maintainable. In so far as his interest is concerned, I have already referred to it.
As to the question of the propriety of the forum, I should take into consideration the argument which has been advanced by Mr. A. H. Pirzada. Counsel argued that the above view of the Supreme Court has for its background the judgment of a Full Bench of this Court reported in Syed Ali lqtidar1 Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore . In that judgment one of the learned Judges observed at page 281 as follows:- "In the first place the Custodian as Tribunal of special jurisdiction does not possess or exercise any inherent jurisdiction, which the ordinary civil Courts exercise, to recall suo mote an order procured by fraud."
Counsel said that the above view was expressed, because the order, which was in question in that case, was of an earlier date than the First of January 1957 which is the target date in terms of section 3 of Act XII of 1957, and in consequence of which a new order cannot be made after the target date. In this case, counsel argued, the order, which has been questioned, was of a subsequent date than the target date, namely, the 24th of December 1959; therefore, section 3 was not a bar in getting that order re-examined. Moreover, counsel said that the Custodian had the jurisdiction to re-examine the order of the 24th of December 1959, because it was made by a Deputy Custodian. Maulana Abdul Quddus Behari has answered this argument by saying that the order of the 24th of December 1959, is mentioned in sub-clause (a) of the prayer clause, but the opening part of the sentence refers to the order of the Custodian and that this prayer is or should be connected with the facts, which are stated in paragragh 12 of the plaint, wherein it is mentioned that Mr. Justice Lari's order made as a Custodian was upset by a sub, sequent order. On this ground he contended that the orders, which he has questioned include the orders of the Custodian and that, therefore, they are not open to re-examination by the Custodian. Additionally, he argued that section 41 of Act XII of 1957, cannot be said to debar a suit which was founded on the allegations of fraud, because fraud vitiates and destroys the validity of any action or order provided it is duly established. The position at present is simpler than it would have been otherwise on account of the observations of the Full Bench of the Supreme Court which have been reproduced above.
11.Lastly counsel for the applicant contended that the suit is barred by Article 95 of the Limitation Act, but it does not require many words to point out that on account of the allegation of fraud such a bar of limitation loses its force.
12.In the end I may mention that it will be better for the parties to have the case decided on merits after taking into consideration all the pleas and the evidence that may be available, because otherwise the litigation will be prolonged and is likely to take place bit by bit which will probably not be in the ultimate interest of either party. The application is dismissed with no order as to costs. PLD 1967 SC 479 PLD 1964 Lab. 274