MUHAMMAD BASHIR KHAN JEHANGIRI, J.---The petitioner has challenged in this revision petition the order of the learned District Judge, Mansehra dated 16-9-1991 whereby he affirmed the order of the learned Senior Civil Judge, Mansehra dated 3-6-1990 returning the plaint of the petitioner under Order VII, rule 10, C.P.C.
2. The petitioner had brought a suit against the respondents for declaration that the proceedings under section 81 of the Land Revenue Act, 1967, for recovery of dues of respondent No.1 outstanding against the petitioner as arrears of land revenue were mala fide, without jurisdiction, void and ineffective against his rights particularly when the loan was duly secured through deposit of title deeds and mortgage deeds and further that no accounts had been settled between the parties.
3. The petitioner was advanced loan in 1985 by respondent No.1 for --setting up a Poultry Farm. It appears that he failed to pay the due instalments and, therefore, respondent No.1 initiated proceedings against the petitioner for recovery of an amount of Rs.6,22,784.75 outstanding against him as arrears of land revenue and towards that end respondent No.3 served a notice upon the petitioner. The grievance of the petitioner precisely is that loan being secured one and there being no settlement of accounts between the parties, respondent No.l could not legally recover from the petitioner a sum of Rs.6,22,784.75 alleged to be due as arrears of land revenue without affording him an opportunity to question the correctness of the said alleged liability and also on the grounds enumerated in para. 10 of the plaint. Hence the suit for declaration and perpetual injunction.
4. Alongwith the plaint, the petitioner had filed an application for issuance of temporary injunction restraining the respondents from recovery of the amount in suit as arrears of land revenue till the disposal of his suit.
5. Respondent No.l, apart from resisting the suit by filing the written statement, also moved an application under Order VII, rule 11, C.P.C., in the suit for rejection of the plaint on the grounds: (1) that plaint did not disclose any cause of action; (2) that the Court had no jurisdiction to entertain the suit for an action initiated under the Land Revenue Act, 1967; and (3) that jurisdiction of the Civil Court was barred under section 6(4) of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter called as the. Ordinance). This application was resisted. In the light of legal objections raised by respondent No.l the following preliminary issues were settled:- (1)Whether this Court has got no jurisdiction?
(2)Whether authority vests in the defendants to recover arrears of Bank loan as arrears of land.
Revenue and the suit is incompetent?
(3)Whether the suit is liable to rejection under Order VII, rule 11, C.P.C.?
The learned trial Judge after hearing the parties accepted the application and instead of rejecting the plaint he ordered its return under Order VII, rule 10, C.P.C., for its presentation to the Special Court, Banking, which has the jurisdiction in the matter. On appeal, the learned District Judge affirmed this finding of the learned trial Court that the Civil Court had no jurisdiction to entertain the suit brought by a borrower challenging his liability to pay the dues as arrears of land revenue and further that the Special Court constituted under the Ordinance had the power to grant or refuse the relief claimed in the suit.
6. Syed Sajjad Hussain Shah, learned counsel for the petitioner, in support of this petition, raised before me the following contentions:- (1)That both the learned lower Courts have not taken into consideration the averments made in the plaint which is the sole criterion for determination of the jurisdiction of Civil Court and not the defence stated in the written statement in violation of legal principles hence' committed gross illegality. This argument was based on the rule laid down in: (1) Mst. Zainab and others v. Fazal Dad and others PLD 1966 (W.P.) Lahore 1050, (2) Sayed Inayat Ali Shah v. Province of Punjab PLD 1978 Lahore 859 and (3) Hakim Salim Ahmad etc. v. Government of Sindh and others 1982 CLC 269.
(2)That both the learned lower Courts have failed to consider that the petitioner had challenged the legality of notice issued without having given the opportunity of hearing and any show-cause notice, which is the basic requirement of natural justice.
(3)That the Revenue Authorities have no jurisdiction to set in motion the machinery provided under the West Pakistan Land Revenue Act, 1967 for realization of the dues as arrears of land revenue without having declared the dues as `legal dues' and `recoverable dues' and without having determined by the lawful authority that whether amount is due or not. In support of the last mentioned two propositions reliance was placed on: (1) Chief Commissioner, Karachi and another v. Mr. Dina Sohrab Katrak PLD 1959 SC 45, (2) Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384, (3) Abdur Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671,
(4) The Province of West Pakistan v. Muhammad Ayub Khuhro PLD 1967 Karachi 673, (5) Abdul Hamid Khan v. Government of West Pakistan' and others PLD 1969 Peshawar 324, (6) Tariq Mohsin Siddiqui v. Province of Sindh and 4 others PLD 1976 Karachi 72R, (7) Messrs Pakistan Pipe and Construction Co. Ltd. v. City Mukhtiarkar and another PLD 1984 Karachi 28, (8) Agriculture Development of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67 and (9) Haji Nabiullah and another, v. Messrs Habib Bank Ltd and 2 others PI-n 1990 Peshawar 17.
7. Malik Mehmood Akhtar, learned counsel representing respondent No.l, on the contrary, contended on the authorities of:
(1) Industrial Development Bank of Pakistan v. Messrs Nadeem Flour Mills and others 1981 SCMR 143,
(2) Farooq Ali v. Banque Indosues and 3 others (1985 CLC 630) and (3) Emirates Bank International Limited v. Messrs Osman Brother and 9 others 1990 MLD 1779 that jurisdiction of Civil Courts in the matter is barred under section 6(4) of the Ordinance.
8. The ratio in the cases of Mst. Zainab, Syed Inayat Ali Shah and Hakim Salim Ahmad, no doubt, is that the nature of a suit for the purposes of jurisdiction has to be decided on the basis- of the averments in the plaint and not on any defence that may be taken upon. This proposition is not attracted to the case in hand. The facts of these cases are quite different and have no relevance whatsoever to the case before me. In this context, a nice distinction was drawn in the case of Farooq Ali also cited above, by Saeeduzzaman Siddiqui, J., as his Lordship then was, and observed as under:-- "In my humble view it is quite different to say that the suit is barred under some law than to contend that the jurisdiction of the Court to entertain the suit is barred under the law. In the first case the jurisdiction of the Court to entertain the proceedings may not be in question whereas in the latter case, even filing of the case before the Court is under challenge. Upon careful reading of Order VII, rule 11,, C.P.C., I am of the view that in order to vest the Court with the jurisdiction to reject a plaint under clause (d) of rule 11 of Order VII, C.P.C. The Court must possess initial jurisdiction to entertain the suit. If the jurisdiction of Court to entertain the proceedings is lacking inherently, then in my humble opinion, it could not reject the plaint and the only order which it could pass in these circumstances, is to return the plaint to plaintiff for presentation to the proper Court. I am quite clear in my mind that rejection of a plaint under Order VII, Rule 11, C.P.C., involves adjudication in some manner with regard to the claim in suit which cannot be done by a Court which inherently lacked jurisdiction in the case."
9. In the precedents cited by the learned counsel for the plaintiff --petitioner the Civil Courts were prima facie possessed of initial jurisdiction to entertain the suit, whereas in the case before me, the jurisdiction of the Civil Courts is inherently lacking. With utmost respect, it is my considered opinion that the mere averments in the plaint would not confer jurisdiction on them A where the Civil Courts inherently lack it. The first contention of the learned counsel is thus not tenable.
10. There is no cavil with the propositions laid down in the chain of authorities cited by the learned counsel for the petitioner in support of his second and third contentions that (1) it is a principle of natural justice that no. One should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence and; (2) that before the operation of the machinery section for realization of the arrears, the authority concerned must decide whether there is an arrear due or not. The pivotal question, however, is that whether these propositions could at all be raised before the Civil Courts notwithstanding the complete ouster of their jurisdiction to entertain the proceedings. The answer would certainly be in the negative. The first and foremost question to be ---adhered to at the outset is whether the Civil Courts can entertain the relief claimed by the petitioner in his suit. The relief precisely claimed is that the respondent-Bank was disentitled to recover its dues as arrears of land revenue on the grounds enumerated in para. 10 of the plaint. The learned counsel for the respondent No.1 has vociferously contended that jurisdiction of the Civil Courts to entertain the present suit had been rightly held by the two Courts below to be barred under section' 6(4) of the Ordinance, as the suit was between a `borrower' and a `Banking Company' and that it related to a `loan' advanced by a Banking Company to a borrower. Conversely, the learned counsel for the petitioner urged that the subject-matter of the present revision is outside the scope of the Ordinance as the relief claimed in the suit could not be granted by a Special Court constituted under the Ordinance. In order to appreciate the respective contentions of the learned counsel for the parties, it would be appropriate to reproduce the provision of section 6 of the Ordinance in order to find out if the reliefs claimed by the petitioner in the suit could be granted by the Special Court. It reads as under:- "6(1). A Special Court shall-- (a)in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), (b)
(c)exercise and perform such other powers and functions as are, may be, conferred upon, or assigned to it by or under this Ordinance.
(2) .......................
(3) .......................
(4)No Court other than a Special Court shall have or exercise, any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court: and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court.
(5)
11. The sole point thus surviving for determination is whether the declaration and perpetual injunction claimed by the petitioner could or could not be granted under subsections (1) (a) and
(4) of section 6 ante. In this context, I would again borrow the following observations from the case of Farooq Ali cited above:-- .
"A reading of section 6 (1)(a) will show that a Special Court while exercising civil jurisdiction in respect of a claim filed before it by Banking Company against the borrower or by a borrower against Banking Company in respect of or arising out of a loan shall have all. Powers vested in a Civil Court under the Code of Civil Procedure, 1908. Section 9 of the C.P.C., confers jurisdiction on Civil Courts to try all suits of civil nature except those cognizance whereof is either expressly or impliedly barred. Therefore, I fail to see why a Special Court while dealing with a case which is cognizable by it under the provisions of Ordinance XIX of 1979, cannot grant a relief which a Civil Court could grant under section 9 of the C.P.C. I am, therefore, of the view that the present suit is triable by a Special Court under Ordinance XIX of 1979. As the suit is cognizable by a Special Court the jurisdiction of all other Courts in respect thereof is barred under subsection (4) of section 6 of the Ordinance, XIX of 1979:"
12. The case of the petitioner from the very outset is that Civil Court has --the jurisdiction to grant the reliefs claimed by him. In consequences I am clear in my mind that if a Civil Court, could grant the. Relief the Special Court would be equally competent to do it under clause (a) of subsections
(1) and (4) of C section 6 of the Ordinance aforesaid. In arriving at this conclusion, I am further fortified by the dictum respectively of the Supreme Court, Karachi High Court and of this Court laid down in the case of Industrial Development Bank of Pakistan v. Nadeem Flour Mills, Munir Ahmad Siddique v. Feroz Ahmad Siddiqui and Haji Nabiullah v. Habib Bank Limited all cited by the learned counsel for the respondent-Bank. The petitioner being admittedly a borrower as defined in clause
(b) and respondent No.l, being a Banking Company as contemplated-in clause (a) of section 2 of the Ordinance, the Special Court constituted under section 5 of the Ordinance would have the exclusive jurisdiction under subsection (4) of section 6 ibid to grant a declaration whether respondent No.1 could or could not legally recover its dues from the petitioner as arrears of land revenue.
13. In this view of the matter, while upholding the findings of the two I Courts below that Civil Court had no jurisdiction in this matter and that Special Court Banking was seized of the-jurisdiction, the order of the learned trial Judge affirmed by the learned appellate Court that plaint should be returned to the plaintiff-petitioner for filing before the competent Special Court, is unexceptionable.
This revision petition is, therefore, dismissed. Having regard to the peculiar nature of the controversy the parties are however, left to bear their own costs.