' This is a Revision Application filed by the applicant under section 115, C.P.C. against the judgment dated 8-12-1981 passed by the District Judge, Thatta whereby the Civil Appeal No.17 of 1980 filed by the applicant has been dismissed and the judgment passed by the Senior Civil Judge in 1st Class Suit No.65 of 1980, dated 21-8-1980 has been maintained dismissing the suit filed by the applicant on preliminary issues.
2. The facts leading to this Revision Application are that the applicant filed a suit for declaration and injunction against four respondents namely the Province of Sind, Board of Revenue Sind, Deputy Settlement Commissioner, Thatta and one Haji Abdul Wahid in respect of certain evacuee properties praying for the following reliefs:- "(a) That this Honourable Court will be pleased to declare that the transfer of properties bearing Custodian Nos.255/D, 255/1-D and 131/1-D situated in Thatta having corresponding City Survey Nos.2891/B, 2893/B and 2894/B Thatta town in favour of the defendant No.4, being the result of forgery in collusion with the Settlement Authorities are illegal, void, ab initio inperative, conferring no right, title or interest on the defendant No.4.
(b) That the plaintiff is the legal transferee of properties Nos.255/1-D and 131/2-D of Thatta.
(c) Defendants Nos.2 and 3 be directed to finalise the transfer of the properties Nos.255/1-D and 131/2-D Thatta in favour of the plaintiff.
(d) Defendant No.4 be permanently restrained by means of permanent injunction from interfering with the possession and enjoyment of the said property by the plaintiff, personally or through his agents or in any manner."
3. Only respondent No.4 filed his written statement and challenged the said suit both on point of facts as well as law. He, inter alia, took a number of legal pleas. The Senior Civil Judge thereupon framed the following two preliminary issues:-
(1) Whether this Court has no jurisdiction to try this suit?
(2) Whether the suit is not maintainable in law?
4. After hearing the arguments, learned Senior Civil Judge dismissed the suit as not maintainable. The applicant filed a Civil Appeal against the said judgment in the Court of District Judge, Thatta which was also dismissed by him against which the applicant has now come in Re, ision to this Court.
5. I have heard Mr. Mazhar All B.Chohan, learned counsel for the applicant, Mr.Muhammad Ibrahim Memon, Additional Advocate-General for Official respondents Nos.1 to 3 and Mr.K.B.Bhutto, learned counsel for respondent No.4.
6. The contentions as raised by Mr.Chohan are two-fold namely: (1) That the Civil Court has jurisdiction to try the suit and (2) that the suit is maintainable in law. As regards the first contention, he referred me to the provisions of sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and submitted that the finding of the two Courts below as to the jurisdiction of the Civil Court being barred by the aforesaid two sections is misconceived. The provisions of sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 read as under:- "Section 22. Finality of Orders.--Save as otherwise expressly provided in this Act, every order made by any officer appointed under this Act, shall not be questioned in any Court.
' Section 25. Bar of Jurisdiction.--Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
' The above-quoted two sections bar the jurisdiction of the Civil Court to entertain declaratory suits or pass any order of injunction in respect of any action taken or to be taken in exercise of its power conferred by or under this Act by an Officer appointed under this Act who is empowered to decide and determine the questions arising out of under this Act. The exercise of powers by an Officer appointed under this Act pre-supposes the action taken by the officer as valid and in accordance with the provisions of law and as such the jurisdiction of Civil Court has been barred. But if certain allegations as to fraud and mala fide have been made against an action taken or purported to have been taken under the provisions of the Act then it is within the exclusive jurisdiction of the civil Court. In any case on repeal of the said Act with effect from 1-7-1974 the plea is no more available to respondent No.4 as contended by Mr. Chohan. Mr. Chohan relied on the following observations made by the Honourable Supreme Court in the case Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356:- ' It is a well-established principle that even where the jurisdiction of civil Courts is barred and conferred upon special tribunals, civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide "
7. Mr.Chohan also relied on a Single Bench decision of the High Court of Lahore reported as Zaheer Ahmad and 6 others v. Allah Ditta and 15 others PLD 1983 Lah.
256. This was a case under West Pakistan Consolidation of Holdings Ordinance, 1960, wherein the jurisdic tion of Civil Court was barred under section 26 of the said Ordinance. It will be of advantage if I quote the following paragraph from that decision which reads as under:- "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. PLD 1954 Lah. 745 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 I.S.A. PLD 1973 Lah. 652, 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 significant in this context as it postulates that the jurisdiction of civil Court was excluded in the matter. Again in case of Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356, 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 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 misrepresentation 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."
8. Reliance may also be placed on another decision of the High Court of Lahore reported as Anjuman Talimul Islam (Registered) Sheikhu pura through Manager, Darul Alum Alsina Sharqia v. Province of West Pakistan through Collector, Sheikhupura and 17 others PLD 1983 Lah.
294.
9. Relying on the case-law, quoted above, I am clear in my mind that the civil Court had the jurisdiction in the matter as an allegation of fraud was made in the suit challenging the action of Settlement Authorities as fraudulent in disposing of property bearing No.131/1-D without putting it to auction as required by law. Mr.Muhammad Ibrahim Memon Additional Advocate-General also does not support the finding of the two Courts below that the civil Court has no jurisdiction in the matter.
10. Now taking up the question of non-maintainability of the suit I may first refer to the statement made at the bar by Mr.Chohan that he restricts his suit to Plot No.131/1-D only. It is an admitted fact that respondent No.4 was issued P.T.O. in respect of Plot No.131/1-D in 1960 which was followed by P.T.D. in 1962. After the service of notice under section 30 of the Displaced Persons (Compensation and Rehabilita tion) At, 1958 the applicant started paying rent to respondent No.4 from May, 1962 as the tenant of respondent No.4 in respect of the said plot and he continued to pay the same upto December, 1976. Meanwhile during the continuation of the said tenancy he made an application to the Deputy Settlement Commissioner for transfer of the said plot which was dismissed by the Deputy Settlement Commissioner on 31-5-1963. The appeal filed by him was also dismissed by the Additional. Settlement Commissioner by his order dated 10-8- 1963. Thereafter, he took no step as provided in the Displaced Persons (Compensation and Rehabilita tion) Act.
1958. Respondent No.4 filed a Rent Case bearing No.R.C.15 of 1977 in the Court of Civil Judge (Controller), Thatta for ejectment of the applicant on the ground of default which was allowed by the learned Rent Controller by his order dated 21-1-1978. The applicant filed First Appeal bearing No.3 of 1978 against the said order in the Court of District Judge, Thatta which was also dismissed on 24-3-1979. Second Appeal bearing No.256/79 was also dismissed in limine by the High Court by its order dated 10-10-1979. Execution application in the said rent case was filed on 20-8-1979 which was ultimately allowed and respondent No.4 was put into possession, during pendency of civil Suit filed by the applicant herein. In view of his dispossession during the pendency of this suit the relief claimed by the applicant in para 12(d) of the plaint cannot, in any case, be granted to him by issuing C permanent injunction restraining respondent No.4 from interfering with the possession and enjoyment of the property in question of the applicant, viz. Plot No.131/1-D, which is no more in his possession.
11. Now I have to look into the prayer for declaration that the transfer of plot in question viz. Plot No.131/1-D in favour of respondent No.4 being the result of fraud and forgery in collusion with the Settle ment Authorities is illegal, can be granted to the applicant in the circumstances of the case or not. For that it is pertinent to refer to the provisions of section 42 of the Specific Relief Act which read as under:- "42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in . such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a 'person' interested to deny a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."
12. In the light of the provisions of section 42 we have to examine the right, title or interest of the applicant. On perusal of the plaint no legal right of the applicant has been threatened to be invaded inasmuch as the application of the applicant for transfer of the plot in question had already been dismissed by the Deputy Settlement Commis sioner and the appeal filed against the order of the Deputy Settlement Commissioner was also dismissed as long back as 1963. There is,I therefore, no existing right of the applicant in respect of the. said plot. Mr.Chohan, however, submitted that had the plot been auctioned which, according to him, was not put to auction as required by law, the applicant would have participated by offering bid in that auction. In my humble view, this can hardly be said to be a right, much less a vested right, in the said plot, entertainable under section 42 of the Specific Relief Act. Reliance may be placed on a number of decisions reported as Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and 2 others 1971 SCMR 711 and Noor Muhammad v.
Settlement Commissioner, Chief Accounts Officer Karachi and 2 others, 1982 CLC 2570.
13. In the above-cited two decisions it has been held that mere desire to bid for a property in an auction does not carry a vested right to bring such property to auction.
14. I may also refer to a case reported as Mir Zaman Khan v. Muhammad Ashraf Lodhi and 2 others 1976 SCMR 319. Relevant observation of the Honourable Supreme Court reads as under:- "The petitioner having failed to prove that he had a legally vested interest in the site, it has been rightly found that he had no locus standi to challenge the transfer in favour of the respondent even if it be assumed that such transfer was not legal. The petitioner was never an allottee of the site."
14-A. In view of the fact that the application for transfer and the appeal were dismissed as long back as abouL20 years ago, the applicant has no legal right in the property in question in respect whereof his Constitutional Petition No.S-123/82 has also been dismissed by me on 17-10-1984.
15. Learned counsel for the applicant has not been able to cite any authority to the contrary that declaration under section 42 of the Specific Relief Act cannot be granted in the circumstances of this case as the applicant has not been able to prove at all that he got any right in the property.
16. In view of the circumstances of the case discussed above, I am of the considered view that the suit as framed is not maintainable and no relief can be granted to the applicant under section 42 of the Specific Relief Act. The applicant having been dispossessed during the pendency of the suit in proceedings under the West Pakistan Urban Rent Restriction Ordinance,1959, the suit has otherwise become infruc tuous as no consequential relief can be granted in the circumstances of the case.The Revision Application is,therefore, dismissed with cats.