MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed against judgment, dated 15-10-1983 of the Baluchistan High Court; whereby a Regular First Appeal filed by the respondents against the orders passed by the Deputy Commissioner Kachhi at Dhadar, was allowed setting aside the same with a further order of remand to the Deputy Commissioner for fresh disposal in accordance with the law.
2. The respondents had filed a suit in the Court of Deputy Commissioner (Hakim-e-Adalat) Kachhi at Dhadar under the Dastoor-ul-- Amal Diwani Kalat for declaration and possession of land with water. A written statement was filed by the appellants wherein several questions were raised including legal objections that the suit was barred by limitation and res judicata. The Deputy Commissioner took note of the pleadings of both the parties, made elaborate comments on the merits of the appellants' case expressing his view that it suffered from infirmities and dismissed the same, inter alia, on the ground that it was barred by limitation, by his order, dated 16-8-1981. The respondents challenged the order of the Deputy Commissioner in the High Court by way of Regular First Appeal under section 96 of the Code of Civil Procedure read with section 23 of the Dastoorul Amal Diwani Kalat. A learned Single Judge by the impugned judgment allowed the same and remanded the case as already stated. The High Court has taken the view that under section 7 of the Dastoorul Amal the Deputy Commissioner being the Hakim-e-Adalat was required to frame issues on the pleadings of the parties and send the case to the Kazi for trial of the issues by receiving evidence and disposal of the case in accordance with the Shariat. It was further held that the Deputy Commissioner had no discretion as Hakim-e-Adalat under section 7 to decide the case himself or to pass any final order of dismissal of suit or rejection of plaint on ground of limitation as all these questions were to be raised before the to whom the Deputy Commissioner had to transmit the case for and disposal, in accordance with the law.
3.Leave to appeal was granted to examine the following arguments:-- " That under section 3 of the Central Law (Statute Reforms) Ordinance, 1960, the Code of Civil Procedure was extended to the whole of Pakistan (with some amendments) including the areas comprised in the former State of Kalat which were governed by Dastoor-ul-Amal Diwani Kalat, 1952.
The effect of section 4 of the said Ordinance, the argument proceeds, was that the provisions contained in the Dastoor corresponding to the provisions of the Code of Civil Procedure stood repealed and replaced by the said provisions of the Code. It was further contended that the result was that the provisions contained in Order VII, rule 11 of the Code empowering the Court to reject the plaint on ground of limitation were available with the Deputy Commissioner whose order in this - case therefore, was with jurisdiction. Reliance was placed on a Division Bench judgment of Baluchistan High Court in Mirza Khan v. Ch Mohan Dass, 1982 CLC 2258, to support the contention that under section 2 read with section 20 of the Dastoor-ul-Amal the Deputy Commis--sioner was to be treated as a Court and in the performance of his functions under the Dastoor he acted in judicial capacity and not in ministerial or executive capacity. Accordingly relying on the said judgment it was urged, that the Deputy Commissioner, in exercise of his judicial functions as a Court, was competent to reject the plaint if it was barred by the without taking any further action.
The decision of the High Court in the case of Bawa Isardas Chela of Kishindas v. Kishindas and another PLD 1983 Quetta 100, it was urged, would not dilute the effect of the afore-noted argument.
Thus the point for consideration was whether the Deputy Commissioner in exercise of his functions under section 7 read with 20 of the Dastoor-ul-Amal Diwani, Kalat was competent to exercise the powers of the Civil Court under the Code of Civil Procedure so as to reject the plaint under Order VII, rule 11 thereof."
4. Notice having been issued to Advocate-General, Baluchistan to assist the Court as amicus-curie, Mr. Amirul Mulk Mangal learned Advocate-General has appeared in pursuance thereof. He has brought to our notice that in so far as the present position is concerned the Statute Law stands modified by Dastoor-ul-Amal Diwani Kalat State (Amendment) Ordinance (No. XXXII) Of 1984 and, that it has made a major change in so far as the trial forum under the Dastoor-ul-Amal is concerned. However, he stated that the present case would be considered under the earlier law as it stood before the change. The learned counsel representing the parties also adopted the same position. Accordingly the arguments were addressed on the same lines as indicated in the leave granting order.
5. The learned Advocate-General proceeding further relied on Jia Ram v. SMT. Kundana Wanti and others PLD 1978 Quetta 91, and argued that in so far as the unamended Dastoor-ul-Amal is concerned. Sections 7 and 20 thereof made provision for a to tiered system of judicial forum at the trial stage. The Deputy Commissioner acting as Hakim-e-Adalat could only after the filing of the plaint obtain written statement and after the submission of any better statement in this behalf he was to frame the issues and transmit the case to the Kazi for trial and recording of evidence as also for rendering the final decision. That being so, he had no jurisdiction to reject the plaint and dismiss the suit on point of limitation or any other ground. Thus he supported the impugned High Court's judgment in this case while the learned counsel for the respondents adopted the reasoning of the learned Advocate-General, learned counsel for the appellants reiterated the arguments advanced at the leave granting stage and cited the same judgments in support thereof.
6. As pointed out by the learned Advocate-General in so far the controversy involved in the present case is concerned, it seems, a major change has been made by Dastoor-ul-Amal Diwani, Kalat State (Amendment) Ordinance (No. XXXII) of 1984, but all the learned counsel appearing in this case preferred dealing with the question involved under the unamended Dastoor. Accordingly the present appeal is being disposed of on the basis of the point noted in the leave granting order.
Thus it is clarified that it would not affect the other cases in which the question of the applicability of Ordinance No. XXXII of 1984, directly or indirectly, might be involved.
7. The three unamended relevant provisions namely, sections 7, 20 and 22 of the Dastoor-ul-Amal Diwani Kalat are reproduced below:-
8. It is agreed that the present case was (on account of its value) entertainable by the Deputy Commissioner and not by any of the lower functionaries who are mentioned in section 20. When read together in this context the three provisions quoted above would require attendance of the defendant before the Deputy Commissioner and the submission by him of a written statement; where after if there is a need for any better statement or written objections, the same would be entertained. And then, in the light of the pleadings the Deputy Commissioner shall after framing the issues transmit the case to the Court of Kazi specified in section 22, if as in the present case the parties are Muslims.
9. Learned counsel for the appellants accepts this position in so far as the Dastoor-ul-Amal unaffected by the influence of the Central Laws (Statute Reforms) Ordinance, 1960 is concerned; but, has vehemently contended that the said law as noted earlier in his argument has rendered the Deputy Commissioner also into a Court and in that capacity being Civil Court he was competent to apply the relevant provisions of Civil Procedure Code including Order VII, rule 11 to dismiss the suit or to reject the plaint on ground of the suit being the-barred without sending the case to the Kazi.
In order to appreciate the argument, it is necessary to reproduce sections 3 and 4 of the said Ordinance which have been relied upon, in this behalf, by the learned counsel. They read as follows: "3. Amendments to effect adaptation of Central Acts and Ordinances necessitated by the establishment of West Pakistan--(1)---Save as otherwise expressly provided in any Central Act or Ordinance, the Central Acts and Ordinances specified in the Second Schedule shall extend to the whole of Pakistan, and shall be amended in the manner indicated .In the fourth column thereof, and shall be deemed to have been so extended and amended on the fourteenth day of October, 1955.
(2) Nothing in subsection (1) shall be deemed to extend, or ever to have had the effect of extending the operation of any Central Act or Ordinance so extended or amended, to---
(a) any Scheduled District to which , immediately before the fourteenth day of October, 1955, such Act or Ordinance did not extend or is not otherwise extended or applied thereafter; or
(b) any of the Special Areas to which, immediately before the fourteenth day of October, 1955, such Act or Ordinance did not extend, or is not otherwise extended or applied therefore or
(c) any Acceding State, not being an Acceding State incorporated, on and from the fourteenth day of October, 1955, into the Province of West Pakistan, whose Instrument of Accession does not authorised, nor is deemed to authorize, the Federal Legislature to make for that State such law as is contained in any such Act or Ordinancenor shall the extension of any Central Act or Ordinance by this Ordinance be deemed to have or ever to have had the effect retrospectively of creating any offence or of retrospectively enhancing the punishment for any offence provided in any law for the the being in force.
"4. Repeal and re-enactment of certain laws in force in certain Acceding States before their incorporation into West Pakistan.--(1? Subject always to the provisions of subsection (2) of section 3 , where the operation of any Central Act, or Ordinance has been extended by an amendment indicated in the second Schedule to any area which, before the fourteenth day of October, 1955 formed part of the territories of an Acceding State, any law in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed, and shall be deemed to have been re-enacted by such Act or Ordinance, as amended by this Ordinance, as if such law were a Central Act, and the provisions of the General Clauses Act, 1897 (X of 1897), shall apply accordingly.
(2) Notwithstanding the provisions of subsection (1), anything done, action taken, right accrued, or liability, penalty, forfeiture or punishment incurred, under any such law as aforesaid during the period commencing on the fourteenth day of October, 1955, and ending with the commencement of this Ordinance. Shall be deemed to have been validly done, taken, accrued or incurred, as the case may be, and the Central Act or Ordinance by which such law is deemed to have been re- enacted shall, to that extent, be deemed not to have come into force during the said period in the area to which such law applied immediately before the commencement of this Ordinance."
10. Learned counsel for the appellants argued that when read together with sections 3 and 4, together with the entry of Code of Civil Procedure as an item in the Second Schedule of the Ordinance it the Code would be applicable to Kalat for purpose of the present case, An further that any provisions of the Dastoorul Amal in force in that are before 14th October, 1955 which corresponds to any of the provision of the Code as amended by the Ordinance shall stand repealed an shall be deemed to have been re-enacted in the so amended Code Civil Procedure.
He further argued that the C.P.C. Itself not having created any Court it provides a procedure to be adopted by the Civil Court which would be the creation of an independent law. Dastoort Amal itself did not create a new Court but conferred the powers of Civil Court on the Deputy Commissioner, therefore, he in the capacity of a Civil Court acting under the Code of Civil Procedure, could pas orders which an ordinary Civil Court was competent to pass. Hence I this case he rightly rejected the plaint on ground of limitation which will be treated as disposal under Order VII, rule 11, C.P.C. The Division Bench case of Mirza Khan, 1982 CLC 2258 relied upon b him and which has already been noticed, undoubtedly in so far as on~ of the to judgments rendered therein are concerned gives partial support to the argument of the learned counsel. It is observed ii para. 6 of the said judgment as follows:-- "A Kazi does not have jurisdiction to entertain or decide a case unless it is referred to him by the Hakim after framing of the issues but once the case is referred to the Kazi by the Hakim, the Hakim ceases to have jurisdiction in respect of the matte so referred. If a case can be disposed of otherwise than on decision of issues and recording of evidence it could be disposed of by the Hakim without reaching that stage when it is referred to the Kazi. The whole scheme of the Act and provision of appeal in respect of decision by the Hakim leave no doubt that the Courts specified under section 20 of the Zabita Amal Diwani have been assigned judicial function and are Courts for all practical purposes until the case is referred to a Kazi under section 7 of the Zabita."
11. It may be mentioned here that the cited case involved the question whether or not the Deputy Commissioner as a Court could or could not pass interim orders under Order XXXVIII and XXXIX of the Code of Civil Procedure. It is not of help for the present discussion. Moreso; because the impugned judgment in this case was rendered by the same learned Judge whose observations in the Division Bench case relied upon by the learned counsel have been quoted above. Here in this case the learned Judge has relied on one of his earlier decisions in the case of Bawa Isardas PLD 1983 Quetta 100, already noticed and in particular the following observation therein has been quoted with re-approval:-- "The counsel of the respondent urged that since the plaint did not reveal a lawful case of action for which the civil suit could be filed the Deputy Commissioner could dismiss the suit. Whatever might have been the merits of the case? The Deputy Commissioner has no power to dismiss the suit after he had called for the written statement. It is necessary for him to frame issues and refer the case to the Qazi for decision on such issues and disposal of the case. If it is found that the plaint does not disclose any lawful cause of action, the Qazi can reject the plaint but the Deputy Commissioner possesses no such powers."
12. After hearing the learned counsel we are of the view that the Court visualized in Order VII, rule 11, C.P.C. Is one-tiered forum which has to consider the applicability of any of the clauses in Rule 11 and can reject the plaint if it is covered by any of them. But in case it decides otherwise then the same Court has to proceed with the other steps and stages in the trial of the suit. But in the Dastoorul Amal Diwani the position for trial of the civil suits is totally different. The forum visualised therein by virtue of the provisions contained in sections 7, 20 and 22 thereof is to-tiered: one of the Hakim-e- Adalat who in the present case was the Deputy Commissioner and the other the Kazi. Kazi, as argued by the learned counsel for the appellants, can be visualized in specified provisions of the Dastoor, as having the powers of Court. The Hakim-e-Adalat (the Deputy Commissioner) also in this context depending upon provisions under which he acts has some of the trappings only of a Court. He after the perusal of the pleadings has to determine the scope of the controversies involved in the list in the form of specified issues. He has also amongst others, the powers under section 11 to attempt at an amicable settlement between the parties himself as also through a Jirga if need be. But that does not mean that he has all the powers of a Court under the Code of Civil Procedure. Looked at in this context this to-tiered forum provided in the Dastoorul Amal does not find any parallel in the Code of Civil Procedure not at least the Court mentioned therein.
Therefore notwithstanding, as argued, sections 3 and 4 read with the relevant item in Second Schedule being applicable to some of the other provisions of the Dastoorul Amal so as to render them as repealed by the said Ordinance, the provisions contained in sections 7, 20 and 22 in so far .As the present discussion is concerned, it has to be held, have not been repealed and/or re- enacted by the Code of Civil Procedure. That being so, the jurisdiction of the Deputy Commissioner as a Hakim-e-Adalat would continue to be determined by section 7 of the Dastoor regarding the power to reject the plaint on the ground of limitation. And as section 7 does not permit him to b decide the case by rejection of the plaint on ground of limitation, therefore, the decision in this case of the Deputy Commissioner of rejecting the plaint or as it also appears dismissing the suit on merits, was without lawful authority and has rightly been set aside by the High Court.
13. The decision of the Full Bench of Baluchistan High Court in the case of Jai Ram PLD 1978 Quetta 91, already noticed relied upon by the learned Advocate-General and the learned counsel for the respondents undoubtedly is relevant to the present discussion. There it was held that the Deputy Commissioner acting by virtue of the powers conferred by section 7 of the Dastoorul Amal, has no power to give a final or binding judgment. It lays down the correct law and is thus approved and in so far as the controversy involved in the present case is concerned. The other questions discussed therein do not require any comment which might become necessary as and when a case comes before this Court. The same for this reason accordingly is being avoided. It is however observed that whenever a similar question arises the relevant provisions of the Dastoorul Amal and the Code of Civil Procedure would be put in juxtaposition and then after comparison it would have to be decided whether by virtue of Ordinance XXI of 1960 any of the provisions of the Dastoor stand repealed and re-enacted in the Code of Civil Procedure by virtue of Ordinance XXI of 1960.
14. The question as to whether the Deputy Commissioner is a Court or not raised and dealt with in the case of Jai Ram PLD 1978 Quetta 91 need not in the present case be gone into further detail as the learned counsel for the respondents has no case even on the assumption that the Deputy Commissioner when functioning under section 7 of the Dastoor is a Court as discussed, visualized and assumed herein.
15. In the light of the foregoing discussion there is no force in this appeal and the same is dismissed with costs.