' Suit Serai comprised in Survey No.766/C (24/16 to 26/16-A) situate in Grain Market Bannu City was originally owned by one Suba Ram and on the partition of the sub-continent the said Serai was ultimately allotted to Ataullah Khan petitioner on 3-2-1973 in consideration of reserve price of Rs,63,360 by the Deputy Settlement Commissioner. Samiullah Khan one of the plaintiffs- respondents who was in possession of a portion of the said property filed an appeal before the Settlement Commissioner against the said order dated 3-2-1973 of the Deputy Settlement Commissioner. The appeal was contested by Ataullah Khan but the Settlement Commissioner by his order dated 26-9-1973 accepting the appeal directed the transfer of the said property in favour of said Samiullah on payment of the reserve price in lump sum by setting aside the transfer order in favour of Ataullah Khan. Ataullah Khan challenged the said order of the Settlement Commissioner in a writ petition. Hon'ble Qaiser Khan, J. (as his Lordship then was) vide his judgment dated 23-5-1974 set aside the order of the Settlement Commissioner and restored that of the Deputy Settlement Commissioner dated 3-2-1973. Samiullah Khan feeling aggrieved by the said judgment of the Judge of the High Court went to the Supreme Court in appeal which too was, however, dismissed by the order dated 29-11-1983. While this litigation was in progress since Ataullah Khan allottee had failed to deposit the reserve price against which the suit Serai had been transferred in his name, therefore, by the order dated 22-5-1975 the D.S.C. Cancelled the allottment so made in favour of Ataullah Khan. On 23-5-1975 Samiullah plaintiff-respondent submitted an application for the transfer of the said Serai in his favour under the amended Settlement Scheme No. VII. Alongwith the application he also submitted form L.H. While this application was pending adjudication Ataullah Khan on 28-5-1975 made another application for permitting him to deposit the outstanding instalments. This application was, however, resisted by the petitioner but the Deputy Settlement Commissioner by his order dated 4-6-1975 allowed the application obliging Samiullah Khan to file a revision petition before the Settlement Commissioner. On 2-4-1984 the Settlement Commissioner rejected the .Revision petition holding that after the promulgation of Repeal Act, 1975 there was no provision for review, revision or appeal. This obliged Samiullah Khan to file a declaratory suit in the Court of the Senior Civil Judge, Bannu against Ataullah and 14 others wherein he challenged the subsequent allotment in favour of Ataullah Khan by the Deputy Settlement Commissioner as also the order of the Settlement Commissioner dismissing his revision petition, to be void, illegal, ultra vires and ineffective upon his rights. Alongwith the suit an application for issuance of temporary injunction restraining Atuallah Khan defendant No.1 from alienating the suit property to other person by way of gift, exchange, sale and mortgage till the disposal of the suit and from ejecting the plaintiff from the suit premises was also moved. The suit was heard on preliminary issue whether the Civil Court had got jurisdiction and ultimately by his judgment dated 7-11-1984 the Senior Civil Judge who was seized upon the matter concluded that the Civil Courts have the jurisdiction to entertain the dispute and accordingly by accepting the application for temporary injunction directed the status quo. Aggrieved by the said order of the Senior Civil Judge Ataullah Khan petitioner-defendant preferred an appeal in the Court of the learned District Judge, Bannu who by his judgment dated 15-2-1987 dismissed the appeal.
2. Aggrieved by the findings of the two Courts below Ataullah Khan has invoked the revisional jurisdiction of this Court under section 115 C.P.C.
3. In this case Mr. M. Sardar Khan counsel for the petitioners had applied for adjournment on the ground that he was to appear in the august Supreme Court in different cases. The record of this civil revision petition which is oldest one at the cause list of this Court, would reveal that the civil revision petition whenever fixed before the Court was adjourned on almost all occasions at the request of the learned counsel for the petitioners. In this connection the orders dated 21-10-1987, 15- 11-1987, 30-1-1988, 17-2-1988, 16-4-1988, 10-12-1988 and 21-3-1989 would all indicate that the case was adjourned from time to time on the request of the learned counsel for the petitioners. By the order dated 17-2-1988 it was made clear to the petitioners that no adjournment would be granted in future. Similarly on 21-3-1988 the petitioners 2 and 4 who were present in Court were clearly made to understand that it was the last chance and no further adjournment would be granted.
Today again the learned counsel for the petitioners has requested for adjournment. However, keeping in mind the voluminous adjournment, caused due to the non-availability of the learned counsel for the petitioners, I propose to dispose of the case in the absence of the counsel for the petitioners.
4. Arguments of Mr. Allah Nawaz Khan, learned counsel for the respondent have been heard and record of the case has been examined.
5. Learned counsel for the respondent raised a preliminary objection that since the petitioners had failed to comply with the mandatory requirements of rule 3 of Order 43 C.P.C. In that no notice of appeal had been given to the respondents, the appeal was not entertainable and the learned Appellate Court correctly held the appeal as such and the revision against the said order is not comeptent. No doubt Rule 3 of Order 43 C.P.C. Makes it mandatory on the appellants to give notice to the respondents against any order which is appealed from during the pendency of the main suit and non-compliance with the said provision of law makes the appeal non-entertainable as has been held in Mrs. Dino Menekji Chinoy and 8 others-petitioners v. Muhammad Matin-respondent (PLD 1983 Supreme Court 693) but keeping in view the fact that the petitioners are not represented I would like to dispose of the case on merits. The main question that falls for determination in this revision petition is whether the Civil Court has the jurisdiction to entertain the suit. From the narration of the facts of this case it is clear that the property in dispute was once allotted in favour of Ataullah Khan petitioner against the reserve price and this order of allotment was upheld upto the august Supreme Court. However, since the petitioner failed to deposit the amount against which he was transferred the suit Serai, the allotment in his favour stood naturally cancelled and on the application of the respondent it was transferred in iiis favour but on appeal the Settlement Commissioner refused to transfer the land to the respondent who was obliged to challenge the order of the Settlement Commissioner in civil suit. In Hamid Husain-appellant v. Government of West Pakistan and others respondents (1974 SCMR 356) the august Supreme Court held that:-- "Jurisdiction of Civil Court even if barred and conferred upon special tribunals, Civil Courts being Courts of ultimate jurisdiciton have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal, or even mala fide."
Thus the two Courts below have correctly formed the opinion that the Civil Court has got the jurisdiction to entertain the instant suit because the plaintiff-respondent has challenged the act of the Settlement Commissioner in refusing to reconsider the allotment in favour of Ataullah Khan who due to failure in depositing of the reserve price had lost, the earlier order of transfer of the suit Serai in his favour. It has been averred in the revision petition that the orders of the two Courts below are in violation of the orders of the High Court and the Supreme Court whereby the suit property had been held in the name of Ataullah Khan validly transferred. The contention would have much force in case Ataullah had not failed in depositing the reserve price within the stipulated period and once he failed to so deposit the price of the suit Serai and the order of cancellation was passed by the competent authority, Samiullah respondent was legally competent to again apply for the transfer of the suit Serai in his favour and if the department failed to accommodate him he had a fresh cause of action and validly approached the Civil Court by bringing the civil suit.
6. Since, however, the main suit is still pending adjudication I would avoid further comments but instantly I concur with the findings of the two Courts below that the plaintiff-respondent has a prima facie case and the balance of convenience being in his favour he was entitled to the injunction prayed for. Since the very title of the petitioner over the suit property is in dispute the ejectment petitions brought on that score also become a question of debate which were also in the circumstances correctly stayed.
7. There is no merit in this Civil revision petition both on facts and law which is accordingly dismissed. Costs to follow the events.