SHAFIUR REHMAN, J.--This second appeal has arisen out of the judgment and decree of the Majlis- e-Shoora, Kalat, dated the 15th October 1965, affirming in appeal the dismissal of the suit by Kazi Sarawan on 23rd August 1965.
2. The facts of the case, in brief, are that Rais Dur Muhammad, the predecessor-in-interest of the plaintiffs and Sohbat Khan were the owners of two Karezes named Surrey and Kalanderwal in village Mand Haji Mangacher. A channel for another Karez known as Mohabatwal, belonging to the defendant-respondents had been dug subsequently and it crossed the channels of the two Karezes belonging to the plaintiffs.
3. The plaintiffs instituted the suit on 17th June 1964 claiming that according to an immemorial custom, they, being the owners of the two Karezes, the channels of which were crossed by another channel, subsequently dug for the Karez of defendant-respondents, were entitled to one Shabana Roze (24 hours) of water from it once every month. The specific custom pleaded was one of "Aab Randari" which, according to the plaintiffs, required that if the channel of a Karez subsequently dug had to cross, either from below or above, any other pre-existing channel, then at the point of such crossing the water had to pass through a pipe and the owner of the former was liable to compensate the latter to the extent of one 'Bel' or one-half Shabana in perpetuity for the channel of each Karez, so crossed. As two Karezes of the plaintiffs were so affected they claimed in perpetuity one Shabana Roze once a month. They alleged that the defendant-respondents had denied them their rights since seven or eight years before the institution of the suit.
4. The defendant-respondents denied the existence of any such custom but admitted that due to the predominant position enjoyed by an existing Karez owner, sometimes Neem Shabana water was exacted for allowing a channel of another Karez to cross an existing channel, but even this execution was restricted to the cases where the channel subsequently constructed was made to cross the existing channel, from below. They admitted that earlier, the channel of their Karez was below that of the plaintiffs and consequently they allowed them one Shabana Raze of water but later they brought the channel above the channel of Karez Qalanderwal. As such their liability arising out of the situation previously existing changed partially to their advantage and they ceased to be liable.
5. Kazi Sarawan framed four issues, relating mainly to the entitlement of the plaintiffs to one Shabana Roze of water from the Karez of defendant-respondents. After recording evidence, the suit was dismissed by the Kazi on 23rd August 1965, on the ground that under Shariat the plaintiffs had no such right over water and the customary right claimed by them being inconsistent with Shariat could not prevail. An appeal to the Majlis-e-Shoora had no better fate.
6. Mr. Basharatullah, the learned counsel for the appellant, urged that the plaintiffs pleaded throughout a customary right, the existence of which was established by an agreement between the parties to this effect, and the long practice under which the respondents had recognized and given effect to such a right. In the circumstances, it was not open to the Courts below to determine the rights of the parties under Shariat ignoring altogether the custom pleaded.
7. In order to ascertain the factual position a Local Commissioner was appointed who has reported as follows :- "Karez Mohabatwal belonging to the respondents runs from South to North while Karez Kalandarwal belonging to the appellants goes from East to West. These two Karez meet at point A shown in the line sketch where they cross each other. At this place Karez Mohabatwal flows above Karez Kalandarwal and the method employed therefor is that iron pipe has been used to pass the water from above Karez Kalandarwal.
Karez Mohabatwal keeps on running towards North and at a distance of about 240 paces from the point where Karez Mohabatwal and Kalandarwal meet, it crosses Karez Surai at point shown in the line sketch. At this point Karez Mohabatwal passes beneath Karez Surai. The method of passing the water of Karez Surai is that it keeps on running through the Kacha channel dug in the soil. Likewise, the water Karez Mohabatwal runs in the Kacha channel immediately beneath Karez Surai."
No objections were filed against this report and the factual position stated therein has not been challeged before us even during the course of arguments.
8. Though a few other questions have been raised during the course of arguments, this appeal involves mainly, the construction and application of section 11 of Dastoorul Amal Diwani, Kalat.
Apart from hearing the learned counsel for the parties, we called upon the other members of the Bar to assist us in the matter, and in response, Mr. Yahya Bakhtiar addressed very able arguments.
9. In order to understand the provisions of section 11 of-the Dastoorul Amal Diwani, and to appreciate its effect on the procedure in civil litigation, it is necessary to reproduce sections 7 and 22 of Dastoorul Amal Diwani also. Section 7 is, as follows :-- {{URDU TEXT}} 10.West Pakistan (Adaptation and Repeal of Laws) Ordinance, 1956 replaced the expression Wazir-i-Azam wherever occurring in any law in force in Baluchistan States Union or part thereof by "Minister of the Provincial Government in relation to all matters except judicial matters, where it shall mean the appropriate Court." The appropriate Court in the Scheme of Dastoorul Amal Diwani, Kalat, in the High Court. The Expression "Wazir-i-Muarif" was similarly substituted by "District Judge", and "Kazi" by Civil Judge. Central Laws (Statute Reform) Ordinance, 1960 applied with certain qualifications the provisions of Code of Civil Procedure to Kalat.
11. A preliminary objection has been raised by the learned counsel for the defendant-respondents that this Second Appeal raises no question of law and as Civil Procedure Code has been extended and is in full force, a Second Appeal would be competent only on the limited grounds provided for in section 100. A reference to section 24 of Dastoorul Amal, under which this Second Appeal has been preferred, makes it clear that it suffers from no such inhibition. An identical objection was considered by this Court in Arbab Qadir Bakhsh and others v. Roshan and another and it was observed. "According to the learned counsel there is no corresponding section in the Code of Civil Procedure which covers section 24 of the Kalat Dastoorul Amal Diwani, Kalat, hence section 24 has not been repealed. This contention has force because section 24 of the Kalat Dastoorul Amal Diwani provides that an appeal would lie to the Majlis-e-Shoora against the order of Kazis and then an appeal would lie to the High Court against the order of the Majlis-e-Shoora. No restrictions as embodied in section 100, C. P. C. are mentioned therein. In view of the above, we find no force in the preliminary objections raised by the learned counsel for the respondents." In the case before us, even otherwise a question of law of substantial importance has arisen concerning jurisdiction and a Second Appeal, would, in any case, be competent.
12. Mr. Basharatullah, the learned counsel for the appellants submitted that as there has been non-compliance with the provisions of section 7 of Dastoorul Amal Diwani, inasmuch as the Presiding Officer did not frame issues, before transmitting the record to Kazi for trial the entire proceedings are vitiated. In resisting this contention it has been urged, and rightly so, that the requirements of section 7 are not mandatory, that noncompliance with it does not necessarily vitiate the trial and the decision, and in any case no prejudice has been caused to either party and the parties to the litigation had acquiesced. Our attention has also been drawn to a decision of this Court in Dost Muhammad and another v. RaisSatik and another where an identical objection was disposed of with the observation that in any case we are of the view that the non-framing of the issues by the Naib-Tahsildar has not resulted in any prejudice to the appellant for the reason that the issues were framed by the Kazi who ultimately decreed the suit." As the Kazi had in the first instance, before proceeding with the trial, framed the issues and no particular prejudice is alleged by either party the technical non-compliance with the requirement of section 7 is of no consequence.
13. Section 22 of Dastoorul Amal Diwani, Kalat, makes it very clear that a Kazi is required to decide a civil matter brought before him in accordance with Shariat. No departure is either envisaged or provided for. In consequence, once the matter reaches the Kazi the rule of decision in trial, and in Appeals arising out of the decisions of the Kazi, is Shariat and nothing else.
14. Reading sections 22 and 11 together one comes to the conclusion that cases involving customary rights, or where the parties are non-Muslims, whatever be the subject-matter of litigation, are diverted to the Jirga while all other cases pass on to the Kazi who is required to decide them according to Shariat. Section 11, independently considered, enjoins upon the Presiding Officer to make an attempt at the very initial stage, after procuring attendance of the parties, to have the dispute settled by compromise, arbitration or Shariat. This is a pre-trial effort at settlement.
15.Section 7 enjoins upon the Presiding Officer to frame issues and thereafter to transmit the record to Kazi for recording of evidence and decision of the matter. The exceptions to this procedure are found in sections 11 and 22. The former provides that if the matter relates to custom, or it is necessary to refer a matter to Jirga, then it could be so referred on obtaining the approval of the High Court, and where such a reference is made, the final order on the recommendation of the Jirga is required to be passed by the High Court. The necessity of referring a case to Jirga, as mentioned in section 7, arises where the parties are non-Muslims. The specific question which requires determination is whether section 11 confers a discretion on the Presiding Officer or an obligation. If it be an obligation, whether the requirement is mandatory or directory.
16. The language of section 11, and also for that matter of section 22 is permissive and enabling. It1 2 concerns procedure of a Court in civil litigation. A similar situation created by the use of the expression "it shall be lawful" came up for consideration before House of Lords in Julius v. Bishop of Oxford Lord Cairns in determining its meaning and effect observed : "The words 'it shall be lawful' are words making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise the power when called upon to do so. These words being, according to their natural meaning permissive or enabling words only, it lies upon those who contend that an obligation exists to exercise this power to show in the circumstances of the case something which according to the principles I have mentioned, creates this obligation".
17.The same expression came up for interpretation. In re: Neath & Brecon Railway Company and James L. J. observed "it is urged that the Act only says it shall be lawful for the Court to order it to be paid out. That is the usual courtesy of the Legislature in dealing with the judicature. It shall be lawful means in substance, that it shall not be lawful to do otherwise."
18.In the case of Macdougall v. Patterson it was held "that the word "may" is not used to give a discretion, but to 'confer a power upon the Court and Judges, and that the exercise of such power depends not upon the discretion of the Court or Judge, but upon the proof of the particular case out of which such power arises."
19.Maxwell while commenting on such provisions (Interpretation of Statutes, Eleventh Edition) observes (page 235): "For these are cases where a power is deposited with public officers, to be used for the benefit of persons having rights in the matter. So, whenever a Statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having a right to make the application, and the exercise depends, not on the discretion of the Court or Judges, but upon proof of the particular case out of which the power arises." It is further observed on the same page : "The Supreme Court of the United States similarly laid it down that that which the public officers are empowered to do for a third person the law requires shall be done whenever the public interest or individul rights call for exercise of the power, since the latter is given, not for their benefit, but for his, and is placed with the depository to meet the demands of right and to prevent the failure of justice. In all such cases, the Court observed, the intent of the Legislature which is the test, is not to grant a mere discretion but to impose a positive and absolute duty".
20. In order to understand the relevance and the application of the principles just enunciated it is necessary to set out, in brief, the Scheme of Dastoorul Amal Diwani, Kalat. The pretrial proceedings are required to be conducted by Naib Tehsildars in matters of the value up to Rs, 1,00), by the Tehsildar in matters of the value up to Rs, 2,000, and by the Nazim in matters of the value up to Rs, 10,000 (section 20).
They have been authorised to entertain the civil disputes in the first instance (section 2) to seek elucidations from the plaintiff (section 4), to secure the attendance of the defendants (section 5), to dismiss the matter in default (section 8) to attempt a settlement (section 11) without themselves going into the merits of the claim, to frame the issues and transmit the case for trial (section 7). It will be observed that functionaries authorised to conduct pretrial proceedings have not been empowered to deal independently or finally with the merits of the case, or to deal with it in a manner and to the extent to contain or predetermine the subsequent course of litigation in trial and appeal. The Kazi has no option but to decide, the cause brought before him in accordance3 4 5 with Shariat (section 22). In such a situation the Legislature could not intend that these functionaries should have so wide a discretion as to divert the course of litigation into channels into which the parties never intended it to proceed, or to stifle the cause by leaving no option but to apply Shariat even to a case where the parties undisputedly placed custom for determination of their rights. Similarly, it could not have been intended that disputes involving non-Muslims should be resolved or adjudicated upon, at the discretion of the Presiding Officer, by Shariat. In the circumstances, the power reposed with the Presiding Officer, in pretrial proceedings, of moving for approval to refer to a Jirga disputes involving custom, or having non-Muslims as parties, is coupled with a positive duty to do so, where the requirements for making such a reference are satisfied. The duty is absolute and unavoidable. There has been a failure in this case to discharge that duty.
20-A. It was urged before us that with the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962 notwithstanding the existence of any custom or usage, disputes of the nature as in this litigation are to be determined by Shariat and consequently there was no error of law in applying Shariat. Section 2 of Act V of 1962 which is invoked for advancing the argument is to the following effect :-- "Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
The subject-matter of this litigation does not fall into any of the specified categories, and consequently Shariat cannot substitute customary rights pleaded in the case. It has never been the case of the defendant-respondents that what was in dispute was not a customary right.
21. For the foregoing reasons, this Second Appeal is allowed, the judgment and decree of Kazi Sarawan and of Majlise-Shoora, is set aside and the proceedings are remanded to the Nazim, for proceeding in accordance with law. The costs to abide the event. PLD 1966 Quetta 44 PLD 1962 Quetta 82 (1880) 5 A C 214 (1874) L R/9 CH. App. 263 (1851) 11 C B 755