1. ' This suit has been filed by the plaintiff for declaration, injunction and recovery of amount. The relief sought in the suit is as under:--
(i) Judgment and decree for Rs,4,13,502 with interest @ Rs,14% from the date of filing of the suit till the recovery of the suit amount.
(ii) Declaration that the plaintiff is entitled to all the benefits and rights which he is entitled under the terms ad conditions of the service and under the rules and practices of the defendants.
(iii) Permanent injunction restraining the defendants from interfering with his rights to enjoy all the facilities and benefits which he is entitled to as mentioned in para. (ii) above.
(iv) Cost of the suit.
(v) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the suit."
2. ' The case of the plaintiff is that contrary to the rules of service and practice, he has been victimised by the defendant No,2, through defendant No,1 and has been denied all the opportunities of remuneration work, which is ordinarily available to all teachers and, therefore, a financial loss has been caused to him. It is further alleged that the plaintiff is not being assigned the work according to his merit and status in the University of Karachi. He has alleged mala fides against the defendants and further claimed that discriminatory treatment is being meted out to him and even the allowances to which he is lawfully entitled are not being paid to him. He also stated in the plaint that he had made representations to the Vice-Chancellor-ex-Officio Chairman of Board of Governors of Institute of Business Administration but to no avail. He also made representations to the Syndicate and the Governor of Sindh, who is the Chancellor of the University. Even those did not bear any fruit and ultimately he instituted this suit.
3. ' The defendants have filed their written statement denying the claim of the plaintiff and also urged that this Court has no jurisdiction in the matter: ' On these pleadings of the parties, 9 issues were settled and the matter had to come up for evidence. At the instance of the learned counsel for defendants, issue No,1 was ordered to be heard as preliminary issue. The said issue reads as under: "Whether the suit is barred and a Civil Court has no jurisdiction to try it under sections 51 and 52 of the University of Karachi Act read with section 9, C.P.C. And Article 175(2) of the Constitution of Pakistan?"
4. ' I have heard Mr. Rehanul Hassan Faruqui, the learned counsel for defendants Nos,1 and 2 and Mr. Shehanshah Hussain, the learned counsel for plaintiff on this issue. Learned counsel for defendants has submitted that the Civil Court is invested with jurisdiction to hear the matters of civil nature as provided under section 9 of Civil Procedure Code. He has further submitted that section 9 of C.P.C.
5. By itself excludes the jurisdiction of Civil Courts in cases where the same is taken away by any special law or statute. He has further submitted that sections 51 and 52 of the Karachi University Act, 1972 as added by University of Karachi (Amendment) Act, 1976 specifically oust the jurisdiction of Civil Courts and, therefore, this Court has no jurisdiction in the case. He has further submitted that no words are to be added by the Courts in the statute which otherwise are not provided therein; and that the barring provisions are to be construed very strictly. He has also submitted that a Civil Court shall not exercise jurisdiction in the matters where the same has been ousted expressly or impliedly. He has placed reliance on the following cases:
(i) Inayatullah v. Mian Ghulam Ahmed (PLD 1984 SC 369);
(ii) Muhammed Iqbal Khan Niazi v. Vice-Chancellor University of Punjab (PLD 1979 SC 1);
(iii) The State v. Ziaur Rahman and others (PLD 1973 SC 49);
(iv) Malik Ghulam Mustafa Khar v. Pakistan and others (PLD 1988 Lahore 49) (Full Bench Judgment).
6. ' In addition to above he has also placed reliance on a number of other cases.
7. ' I have gone through the above judgments of the Hon'ble Supreme Court and the Full Bench of the Lahore High Court. There is no cavil about the proposition advanced by the learned counsel that a Civil Court would not exercise jurisdiction where the same is ousted by a statute expressly or impliedly and also that provisions of a particular enactment would not bestrained to give benefit to a particular party nor the Courts will attempt to alter, add to or amend the provisions of a particular statute where the same are in unambiguous language and are quite clear; and that in such cases, the same are to be interpreted according to ordinary dictionary meaning.
8. ' In order to appreciate the point involved in the case, it would be appropriate to reproduce the same provisions of law as submitted by the learned counsel for defendants which read as under: ' CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973 ' 175.--(1)...........................................
(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."
9. SECTION 9, C.P.C.
10. Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
11. ' Explanation.--A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend. Entirely on the decision of questions as to religious rites or ceremonies."
12. UNIVERSITY OF KARACHI ACT, 1972
51. Bar of jurisdiction.--No Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to any thing done or purported to have been done or intended to be done under this Act.
52. Indemnity.--No suit or legal proceedings shall lie against Government, the University or any Authority, Officer or employee of .Government or University or any person in respect of anything which is done or purported to have been done or intended to be, or has been, done under this Act."
13. ' In view of the above provisions, the point which requires consideration is whether these provisions would oust the jurisdiction of this Court in this suit. Before taking up the matter on merits, it may be observed that jurisdiction would mean a power to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. A Court is said to have the jurisdiction if it has the powers as stated above, which in other words means the authority which is conferred upon a Court to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for the decision of the Court. Reliance may be placed on a Division Bench judgment of Dacca High Court in the case of Failyar Ma alias Atarjan Bibi and others v. Sadir Baksha and others (PLD 1968 Dacca 329). It may also be observed that the Courts ought to be very jealous of their jurisdiction and the ouster of the jurisdiction of Civil Court is not to be readily inferred but the Statute ousting jurisdiction of the Civil Court is to be strictly construed as Civil Courts are supposed to possess jurisdiction over all matters of civil nature. Section 9 of Civil Procedure Code invests the jurisdiction in Civil Court to try all the cases of civil nature, except of course, those where the jurisdiction is ousted by any Statute. It may also be observed that a Civil Court is a Court of utlimate jurisdiction and in case where no other remedy is provided for, the Civil Court is the forum where relief can be sought for.
14. ' In the light of the above observation, now I proceed to take up the provisions as submitted by Mr. Rehanul Hassan Faruqui, the learned counsel for defendants. Article 175 (2) of the Constitution of Islamic Republic of Pakistan, 1973 lays down that no Court shall exercise jurisdiction except as conferred on it by the Constitution or any other law. Section 9 of Civil Procedure Code provides that the Civil Courts shall have jurisdiction to try all suits of civil nature excepting the suits, the cognizance of which is either expressly or impliedly barred. Now in light of these two provisions it has to be examined if the provisions of sections 51 and 52 of the University of Karachi Act unilaterally barred the jurisdiction of the Civil Court. These two sections do provide that Civil Court will not have the jurisdiction in the matter with regard to anything done or purported to have been done or intended to be done "under this Act"; and that no legal suit or proceedings shall lie against the University or any Authority or Officer or employee thereof. The words "under this Act" are very material. In order to oust the jurisdiction of a Civil Court, it would be necessary ,for the defendants to justify that the orders, acts or omissions complained of by the plaintiff are such as have been done under the University of Karachi Act, 1972. The words "under this Act" have been taken into consideration in the case of Abdul Rauf v. Abdul Hameed Khan (PLD 1965 SC 671). In this case their Lordships are pleased to hold as under: "No order is an order passed 'under the Act' if it was not passed in exercise of powers granted by the Act and was, therefore, without jurisdiction. In a particular Act the words 'under the Act' or 'under Chapter....' may not appear and words of similar import may be used. But whatever the phraseology employed, any provision in an enactment saying that orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be said as a general rule, without reference to the language used in an enactment, that barring provisions apply only to orders passed with jurisdiction. Of course it is open to the Legislature to provide that not only acts done under an enactment but even acts which purport to be done under an enactment will be immune from challenge. Such a provision will, however, be a very exceptional one, a provision which we arc likely to come across only during a national emergency."
15. ' In the same case it was further held by their Lordships that where the Legislature grants power to take actions or to pass an order, it does not imply mala fide exercise of the power; and that a mala fide order or act is by its nature a fraud on Statute and an act without jurisdiction. Their Lordships were further pleased to hold that no Legislature when it grants power to take action or to pass an order contemplates a mala fide exercise of the power. It has also been held in the same case that a mala fide order means an order which is passed not for the purposes contemplated by the enactment granting power to pass the order but with some other collateral or ulterior purposes.
16. ' From the above discussion, it can be observed that an order to be immune from challenge has to be an order passed within the four corners of the provisions and powers granted by the Authority under the enactment; and that it should not be an order passed with mala fide intention which means passing of order for some other collateral or ulterior purposes. In such circumstances a Civil Court has the jurisdiction to make an enquiry into orders passed by Administrative Authority or quasi-judicial Tribunals if the said orders are shown to be mala fide, without jurisdiction or based on non-existing circumstances. A reference may be made to the case of Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (PLD 1965 SC 698). Similarly, in the case of Zafarul Hassan v. The Republic of Pakistan (PLD 1960 SC 113), their Lordships have been pleased to hold that one of the conditions for ouster of jurisdiction of Court is that the grounds on which the action is taken should be within the grounds stated by the Statute and the order made should be such as could have been made under the Statute. Also in the case of M/s. John Fibre Company Ltd. v. Abdul Jabbar (PLD 1968 SC 381) it has been held by the Hon'ble Supreme Court that it is well-settled rule that the ouster of jurisdiction of a Civil Court in respect of a civil suit is not to be readily inferred unless the jurisdiction is expressly or impliedly taken away by some other law. Also in the case of Muhammad Din and others v. Imam Din (PLD 1947 PC 317) it was held that where the Executive Authority had acted ultra vires, the suit under section 9 of Civil Procedure Code was maintainable.
17. ' The upshot of the above discussion is that where the act complained of is alleged to be not within the scope or authority vested by the enactment or their any such act is done or order is passed not for the purposes of the provisions of enactment but for some other collateral or ulterior purposes, the same would be a mala tide act and would not be immune from challenge before the Civil Court. Such an act would be deemed to be not the act under the Statute and, therefore, would not be protected. In such circumstances, the ouster of jurisdiction of Civil Court cannot be readily inferred but the Court will have to examine the facts, grounds and circumstances under which the authority had passed such orders or had acted. For this purpose, it would be necessary for the parties to bring evidence on record and the suit cannot be dismissed merely on account of these barring provisions. Lastly, the learned counsel for defendants has placed reliance on a Single Bench judgment of this Court passed in Suit No, 363 of 1982 (Abdul Sattar Shah v. Vice-Chancellor and and another). In this case by judgment passed on 13-12-1992 the learned Single Judge held the suit to be barred under sections 51 and 52 of the University of Karachi Act. However, in view of the above-referred judgments of the Hon'ble Supreme Court, I am of the view that in this suit it would be necessary to allow the parties to lead evidence, specially the plaintiff to prove his allegations of mala fides as have been made by him in paragraphs 6 to 8 of the plaint. In this view of the matter, the preliminary issue is answered in negative. The Court has the jurisdiction to examine the acts, omissions and orders passed by the defendants in order to determine their validity. The suit is H to proceed on merits and parties are allowed to lead evidence in respect of the remaining issues.
18. ' Above are the reasons for the short order announced in Court on 10th May, 1993.