' KHAWAJA MUHAMMAD SAEED, J.---The present appeal has been filed against the order of District Judge, Mirpur dated 26th of February, 1992, whereby the suit filed by the plaintiff-appellant was dismissed for non-prosecution and for non-compliance of the order of the Court passed on 22nd January 1992 whereby the plaintiff-appellant was directed to file proclamation fee with the office within one week for effecting service on defendant-respondent No,2.
2. Necessary facts giving rise to the present controversy briefly stated are that plaintiff-appellant filed a suit against defendant-respondents for the recovery of Rs,1,45,000 with interest at the rate of Rs,12 per cent. from 27th of March, 1990 in the Court of District Judge, Mirpur on 28th of December, 1991. In this suit it was contended by the plaintiff-appellant that Plot No,117 measuring 2-1/2 Marlas situate in Dudyal Hamlet, District Mirpur was originally allotted in the name of Muhammad Azam Khan, pro forma defendant who transferred the same in favour of defendant-respondent No,1. It was further alleged in the suit that defendant-respondent No,1 entered into a written agreement on 27th of March, 1990 whereby he transferred the said plot to the plaintiff-appellant for a consideration of Rs,1,45,000. It was further contended in the suit that three months back before the filing of the suit, the plaintiff-appellant came to know that no plot was in existence at the spot for which defendant-respondent No,1 had taken a 'sum of Rs,1,45,000 from him.
' He, therefore, filed the above-referred suit for the recovery of the aforesaid amount with interest thereon from 27th of March, 1990, the date when the agreement was written between the parties.
3. In this suit, notices were issued for the service of defendant-respondents. On 22nd of January, 1992, Chaudhary Muhammad Taj, the learned counsel for the contesting respondent No,1 appeared on his behalf and filed power of attorney. However, the notice issued for the service of the defendant-respondent No,3 was not received back after due service, as such the Court ordered that fresh notices shall issue for his service. However, per report of process-server defendant- respondent No,2 had gone to England as such the Court ordered that service on this defendant- respondent shall be effected through proclamation. The plaintiff-appellant was directed to deposit proclamation fee within one week vide order dated 22nd of January, 1992. The case was posted for further proceedings to 26th of February, 1992. On this date neither the plaintiff-appellant turned up in the Court nor he had deposited the process fee for effecting service on pro forma defendant No,2. In these circumstances, the order under appeal was passed by the Court, whereby the suit of the plaintiff-appellant was dismissed.
4. We have heard the learned counsel for the parties and have gone through the record of the case with utmost care.
5. A preliminary objection was raised by the learned counsel for the defendant-respondent No,1 to the effect that the order of dismissal of the suit is not a decree within the meaning of section 2(2) of the Code of Civil Procedure, as such right of appeal has wrongly been availed by the plaintiff- appellant. He further argued that under Order 9, Rule 4 of the Code, the plaintiff-appellant should have applied for the restoration of his suit after disclosing sufficient cause for his non-appearance.
6. Raja Muhammad Siddique Khan, the learned counsel for the plaintiff-appellant argued that both the defendant-respondents Nos.2 and 3 were not necessary party, therefore, their presence before the Court was not necessary for adjudication of the dispute between the parties on merits, as such, the suit was wrongly dismissed for non-compliance of the order of the Court dated 22nd of January, 1992. He further argued that the impugned order was passed under Order 17, Rule 3, C.P.C. therefore, he has rightly invoked the appellate jurisdiction of this Court against the said order.
7. We have given our anxious thought to the arguments advanced for and against the controversy in hand.
8. In our opinion, the impugned order was passed under Order 9, Rule 2, C.P.C. and Order 9, Rule 3, C.P.C. Both the orders, for the convenience of the reference are reproduced as under:--- "Order 9, Rule 2.---Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed: ' Provided that no such order shall be made although the summon has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent.
' Order 9 Rule 3.---Where neither party appears. the suit to be dismissed. Where neither party appears when the suit is called for hearing, the Court may make an order that the suit be dismissed." ~~Against such like orders, remedy has been provided specifically under Order 9, rule 4 of the Code.
We fully agree with the learned counsel for the plaintiff-appellant that the law favours adjudication of disputes raised in pleadings by the parties on merits, but at the same time we cannot ignore that for the safeguard of interest of justice, the legal formalities and procedural provisions must be followed by the parties. Under Order 9, Rule 2, C.P.C. the Court can pass an order of dismissal of the suit, where the requisite charges necessary for further progress of the suit, have not been paid on the date fixed. No doubt, the Court has power to extend time but in this case, the plaintiff-appellant failed to appear in the Court on the date fixed for hearing. In these circumstances, the trial Court had no option but to dismiss his suit under Order 9, Rule 3, C.P.C. An order of dismissal passed under Order 9, Rule 3, C.P.C. is not a decree within the ambit of section 2(2) of the Code, therefore, no appeal lies against it. In the light of the above discussion, the plaintiff-appellant has wrongly filed the present appeal against the impugned order.~~
9. In the aforesaid view of the matter, the appeal being incompetent, stands dismissed with costs.
[Azad J & IC] Before Muhammad Riaz Akhtar Chaudhary, I Khawaja MUHAMMAD AKBAR and 5 others---Appellants versus Khawaja FATEH MUHAMMAD and 15 others---Respondents Civil Appeal No,21 of 1988, decided on 29th October, 1992.
(a) Jurisdiction- ----Question of jurisdiction to be decided on basis of averments contained in the plaint and not on the averments contained in the written statement---While determining jurisdiction, Court has to look into the cause of action and nature of claim brought before it by plaintiff---Civil Procedure Code (V of 1908), S.9. [p. 80] A
(b) West Pakistan Land Revenue Act (XVII of 1967)-- ----Ss.53 & 172---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.9--- Jurisdiction of Civil Court to rectify wrong entries of revenue record pertaining to title or interest has been conferred by provision of S.53, West Pakistan Land Revenue Act, 1967---Provision of 5.172, West Pakistan Land Revenue Act, 1967, excludes Civil Courts from laying its hands on those functions which had been assigned to Revenue Courts---Every presumption should be made in favour of jurisdiction of Civil Courts and all laws trenching upon usual jurisdiction of Civil Courts should be construed strictly---Ouster of jurisdiction of Civil Courts should be construed strictly---Ouster of jurisdiction of Civil Courts not to be inferred until and unless words used in the statute make it clear that intention was to take away the jurisdiction. Section 53 of the West Pakistan Land Revenue Act, 1967 suggests that a person feeling himself aggrieved by an entry of the revenue record about his right which he was possessing can initiate the matter before the Civil Court. Section 172 is meant for different eventuality, it deals with the mere correction of entry alleged to be wrong by the Revenue Officer. Where the Revenue Officer had passed same order pertaining to some entry, then it bars the jurisdiction of Civil Court pertaining to the validity of that order. It has no bearing on a suit under section 53 of the Land Revenue Act. Long-standing entries in the revenue record are not to be altered in a summary manner through a mutation. The mutation proceedings are summary in natare. Right of the parties could not be determined through the mutation proceedings because no plaint or written statement was filed and no issues were framed. No witnesses were examined. It would be usually injudicious for Revenue Officers to take the function or the Civil Court. Right of the parties could only be determined after obtaining the claim of both of the parties in the shape of plaint and written statement, then forming disputed points in the shape of issues between the parties and then recording the evidence. Right of the parties could not be determined in summary proceedings. Wherever, a person feels himself aggrieved in respect of his right of which he had been deprived through an entry in the revenue record then he could only approach the Civil Court and the Civil Court was only forum competent to determine such a right after following the prescribed procedure. [p. 81] B Functions of the Revenue Courts are to prepare the Revenue Record in the light of the evidence regarding one's title or interest. Such right if disputed, order of Civil Court would be a final order. Section 53 of the Land Revenue Act, confers a right in favour of an aggrieved person to have "recourse" to the Civil Court for declaration of his right under section 42 of the Specific Relief Act. Section 172 of the Land Revenue Act was entirely different, it only excludes the Civil Court from laying its hands on the functions assigned to the Revenue Court. Section 172 has no concern pertaining to the dispute arising about the title from an entry of the Revenue Record. Wherever there would be a dispute pertaining to the title and the dispute had arisen due to some entry made in the revenue record by the Revenue Authorities then only course is to approach Civil Court for its resolution. [p. 82] C Long-standing entries in the Revenue Record could only be corrected through a suit under section 42 of the Specific Relief Act because the Civil Court could decide the complicated questions of facts and law and the Revenue Courts could not decide such questions. Entry in the Revenue Record pertaining to the right of a person could only be challenged in the Civil Court. [p. 82] D Under section 9 of the C.P.C., the Civil Courts have jurisdiction to try all the suits except those in respect of which the jurisdiction of the Civil Courts had been expressly or impliedly barred. If both provisions viz. section 53 and section 172, West Pakistan Land Revenue Act, 1967 are read together, every presumption should be made in favour of jurisdiction of the Civil Courts and all laws trenching upon the usual jurisdiction of Civil Court should be construed strictly. Ouster of the jurisdiction of the Civil Court is not to be inferred until and unless the words used in the statute make it clear that the intention was to take away the jurisdiction. [p. 83] E When there were two provisions of law one barring the jurisdiction of Civil Court, and the other conferring the jurisdiction upon the Civil Court then in the light of principle of interpretation of law, it cannot be said that the provision barring the jurisdiction would prevail but the provision conferring the jurisdiction would prevail. [p. 84] G 1987 CLC 2461; PLD 1966 Lah. 1050; AIR 1926 Mad. 37; AIR 1954 All. 171; 1980 CLC 520; PLD 1964 Lah. 324 and 1984 CLC 3156 ref. PLD 1963 W.P. (Rev.) 16; PLD 1983 Quetta 52; PLD 1960 Dacca 555; PLD 1959 Azad J&K 61; 1980 CLC 713; PLD 1983 Lah. 294 and PLD 1983 Lah. 254 rel.
(c) Interpretation of statutes- ----All laws trenching upon the usual jurisdiction of Civil Courts should be construed strictly. [p. 83] E
(d) Interpretation of statutes--- ----Law which encroaches upon the right of citizen to have recourse to a Civil Court, should be construed strictly. [p. 83] F Ghulam Mustafa Mughal for Appellants. Khawaja Muhammad Naseem for Respondents.
Date of hearing: 17th October, 1992.
' Through this appeal, the appellants have called in question the judgment and decree of the learned District Judge, Muzaffarabad dated February 28, 1988 whereby, the appeal of the respondents has been accepted and the judgment and decree passed by the learned Additional Sub-Judge, Muzaffarabad dated October 31, 1984 was set aside and the case was remanded to the learned Additional Sub-Judge, Muzaffarabad.
2. The relevant and necessary facts for the disposal of this appeal are that the respondents (plaintiffs) brought a declaratory suit in the Court of Additional Sub-Judge, Muzaffarabad on 17-3- 1983, stating therein that the ancestors of the plaintiffs and defendants namely Faqeer Jee, Rasul Jee and Muhammad Jee, all three were the owners of the one, one share equally in the land measuring 8-Kanals and 11-Marlas comprising Survey Nos.500 and 509, situated in District Muzaffarbad, as it was recorded in Misl-e-Haqiat of 1986 87. In the Jamabandi partaining to year 1994-95 Bk, Faqeer Jee and Rasul Jee both have been recorded the owners of one share and Fazal Daddi widow of Muhammad Jee, owner of one share. By this entry of the Jamabandi, both Faqeer Jee and Rasul Jee who were the owners of one one share, have been recorded as the owners of only one share. This entry is perverse to the entry of the Misl-e-Haqiat of 1986-87, as they have sought a declaration for the correction of the entry of Jamabandi pertaining to year 1994-95 Bk. and have prayed that they may be declared the owner of one one share and the entry recorded in the aforesaid Jamabandi may be amended and should he recorded according to the entry of the Misl-e-Haqiat of 1986-87.
3. This suit was contested by the appellants (defendants). The appellants (defendants) raised preliminary objection that the Civil Court has no jurisdiction to adjudicate upon the matter. The learned Additional Sub-Judge Muzaffarbad vide his judgment and decree dated October 31, 1984 dismissed the suit of the respondents for want of jurisdiction. Feeling aggrieved from the judgment and decree of the learned Additional Sub-Judge, the respondents brought an appeal before the learned District Judge, Muzaffarabad, who accepted the appeal of the respondents and held that the Civil Court has jurisdiction to adjudicate upon the matter and remanded the case to the trial Court for the decision on merits. Now the appellants have challenged the judgment and decree of the learned District Judge on the ground that the Civil Court has no jurisdiction to adjudicate upon the matter.
4. The learned counsel for the appellants argued that the Civil Court has no jurisdiction to amend the entries of the Jamabandi as the jurisdiction of the Civil Court has been barred by section 172 of the West Pakistan Land Revenue Act. The learned District Judge has wrongly held that the Civil Court has jurisdiction to adjudicate upon the matter pertaining to the correction of the entries of the Jamabandi. He referred the following authorities in support of his contention:--- PLD 1964 Lah. 324, 1980 CLC 520,1984 CLC 3156.
5. While controverting the arguments of the learned counsel for the appellants, the learned counsel for the respondents argued, that it is only the Civil Court who can correct or amend the long- standing entry in the revenue record, as it has been clearly laid down in section 53 of the West Pakistan Revenue Act. As section 172 is concerned, that has only been meant for the officials of the Revenue Department and a private party can challenge the entry of the revenue record through a civil suit under section 42 of the Specific Relief Act.
6. I have heard the learned counsel for the parties and perused the record of the case.
7. In the instant case, the question requiring the determination is that whether the Civil Court has the jurisdiction to adjudicate upon the matter pertaining to the amendment of the entry of the Jamabandi or not?
8. ~~The question of the jurisdiction is always to be decided on the basis of the averment contained in the plaint. Court while determining the jurisdiction has only to look into the averment of the plaint and not on the everment contained in the written statement. For the purpose of determining the jurisdiction, the Court has to look into the cause of action and nature of claim brought before him by the plaintiffs. As it is well-settled principle of law that cause of action can duly be looked into on the basis of the matter contained in the plaint and it does not depend upon what the defendants have alleged or what they want to assert. That question whether the Civil Court has jurisdiction or its jurisdiction is barred depends upon the construction of the plaint and does not depend upon what the defendants have asserted in the written statement. This view finds support from 1987 CLC 2461(2466) which reads as under:---~~ "While determining the jurisdiction of a Civil Court to entertain and decide upon a cause of action, the nature of the claim put forward by the plaintiff as his cause of action is to be looked into and the matter involved does not depend upon what the defendant may assert or asserts by way of defence and it would not matter-if it turns out at the trial that the subject of contest between the plaintiff and defendant is not properly represented by the forum which the plaintiff has chosen."
' The same view also finds support from PLD 1966 Lah. 1050(1052 1053), which rods as under:--- "It is a well-established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up."
' The aforesaid view also finds support from AIR 1926 Mad. 37 and AIR 1954 All.
171.
9. Now the question arises that what has been alleged in the instant plaint, and whether the jurisdiction of the Civil Court has been barred expressly or impliedly on the facts alleged in the plaint, or the facts alleged in the plaint can only be looked into by the Civil Court?. In the instant plaint it has been alleged that three ancestors of the plaintiffs and defendents were equally entitled to one one share and it has been recorded so in the Revenue Record but in Jamabandi of 1994-95 Bk, both Faqeer Jee and Rusul Jee have been deprived of their right of one share which they were possessing as it may be corrected. Now the next question arises that whereby an entry of the Revenue Record a person feels himself aggrieved pertaining to any right, which he was possessing then whether the matter is cognizable by the Civil Court or not? ~~Section 53 of the Land Revenue Act is very much clear on the point. It suggests that a person feeling himself aggrieved by an entry of the revenue record about his right which he was possessing can initiate the matter before the Civil Court, so the facts alleged in the present plaint are cognizable by the Civil Court as laid down in section 53 of the Land Revenue Act. Section 172 has no bearing on the facts alleged in the instant plaint. Section 172 is meant for different eventuality, it deals with the mere correction of entry alleged to be wrong by the Revenue Officers.
Where the Revenue Officers have passed same order pertaining to some entry, then it bars the jurisdiction of Civil Court pertaining to the validity of that order. It has no bearing on a suit under section 53 of the Land Revenue Act.
10. It is a well-established principle of law, that long-standing entries in the revenue record are not to be altered in a summary manner through a mutation. It may be stated that the mutation proceedings are of the summary in nature. Right of the parties cannot be determined through the mutation proceedings because no plaint or written statement are filed and no issues are framed.
No witnesses are examined and cross-examined. It would be usually injudicious for Revenue Officers to take the function of the Civil Court. Right of the parties can only be determined after obtaining the claim of the both of the parties in the shape of plaint and written statement, then forming disputed points in the shape of issue between the parties and then recording the evidence. Right of the parties could not be determined in summary proceedings. Wherever, a person feels himself aggrieved to his some right of which he has been deprived through an entry in the revenue record then he can only approach the Civil Court and the Civil Court is only competent to determine such a right after following the prescribed procedure. This view finds support from PLD 1963 W.P. (Rev.) 16(17) which reads as under:---~~ "The question whether there is prima facie justification for a change in the entries is not under consideration but whether entries of long standing should be altered in the summary manner provided by mutation proceedings is a matter open to very serious objections. It may briefly be said that mutation proceedings are very summary in character. They do not determine the rights of parties. No plaints or written statements are filed, no issues are framed, no witnesses are examined and cross-examined. It would thus he highly injudicious for Revenue Officers to take on the functions of Civil Courts without following the procedure laid down by the C.P.C. If the petitioner feels aggrieved by these entries, and prima facie there may be justification for his grievance, the proper remedy for him is to approach a competent Court of civil jurisdiction and not have the matter determined by the summary proceedings of a mutation."
11. ~~Functions of the Revenue Courts are to prepare the Revenue Record in the light of the evidence regarding one's title or interest. Such right if disputed, order of Civil Court will be a final order.
Section 53 of the Land Revenue Act, conferes a right in favour of an aggrieved person to have "recourse to the Civil Court for declaration of his right under section 42 of the Specific Relief Act.
Section 172 of the Land Revenue Act is entirely different, C it only excludes the Civil Court from laying its hands on the functions assigned to the Revenue Court. Section 172 has no concern pertaining to the dispute arising about the title from an entry of the Revenue Record. Wherever there will be a dispute pertaining to the title and the dispute has arisen duel) some entry made in the Revenue Record by the Revenue Authorities then only course to the Civil Court can be made, this view finds support from PLD 1983 Quetta 52(56) which reads as under:--~~ "The functions of the Revenue Courts is to prepare the revenue records in the light of the evidence with regard to one's title or interest, but the finality is attached to the orders of the Civil Courts who shall determine such rights if any dispute arose in that regard. The view of the Senior Civil Judge was erroneous and was rightly set aside by the District Judge."
12. It is almost established principle of law that long-standing entries in the Revenue Record can only be corrected through a suit under section 42 of the Specific Relief Act because the Civil Court can decide the complicated questions of facts and law and the Revenue Courts could not decide the complicated questions of law and facts.
13. It is settled principle of law that the entry in the Revenue Record pertaining to the right of a person can only be challenged in the Civil Court, thus the contention raised by the learned counsel for the appellants has no substance because according to the facts contained in the plaint the matter is only cognizable by the Civil Court.
14. The case-law referred by the learned counsel for the appellants is distinguishable because in the reports 1980 CLC 520, PLD 1964 Lah. 324 and 1984 CLC 3156, the entries of the Khasra Girdawari were challenged and the Court held that the Civil Court has no jurisdiction to amend the entries of the Khasra Girdawari thus the case-law cited by the learned counsel for the appellant has no bearing on the facts of the present case.
15. Assuming for the sake of arguments that on the one hand section 172 of West Pakistan Land Revenue Act bars the jurisdiction of the Civil Court, even in respect of the matters pertaining to the correction of an entry of Jamabandi regarding the title and on the other hand section 53 of the West Pakistan Land Revenue Act confers the jurisdiction on the same matter to the Civil Court then which one will prevail. Under section 9 of the C.P.C., the Civil Courts have jurisdiction to try all the suits except those in respect of which the jurisdiction of the Civil Courts have been expressly or impliedly barred. Now the question arises that whether here the jurisdiction has been expressely barred in the presence of the both of the aforesaid provisions and if both are read together. As a general principle every presumption should be made in favour of jurisdiction of the Civil Courts and it is well known principle of interpretation of law that all laws trenching upon the usual jurisdiction of Civil Court should be construed strictly. Ouster of the jurisdiction of the Civil Court is not to be inferred until and unless the words used in the statute make it clear that the intention was to take away the jurisdiction. This view finds support from PLD 1960 Dacca 555 and PLD 1959 Azad J&K 61.
The jurisdiction vested in the Civil Court by virtue of section 9 of the C.P.C., could only be restricted or ousted by the legislature either by express legislation or by necessary intendment. But as stated above, the law which encroaches upon the rights of the citizen to have recourse to a Civil Court is to be construed strictly. F This view also finds support from 1980 CLC 713.
16. There is a plethora of case-law laying down that despite a clear ouster of the jurisdiction of a Civil Court in a particular law there are situations in which even then the jurisdiction can be exercised. This view finds support from PLD 1983 Lah.
294. The jurisdiction of the Civil Court cannot be barred until and unless the statute contained the words clearly evidencing the intention of legislature to exclude the jurisdiction of the Civil Court. The object or purpose of all construction or interpretation is to ascertain the basic intention of the law- maker. Now here the question arises that whether in the instant case, the basic intention of the legislature was to exclude the jurisdiction of the Civil Court pertaining to the correction of the entries of the Revenue Record or not? Although in section 172 of the West Pakistan Land Revenue Act, it has been laid down that the Civil Court has no jurisdiction pertaining to the framing of the record of rights or periodical record preparation, signing, attestation of any document including a such like but at the same time, in section 53, it has been provided that any person feeling himself aggrieved by an entry in a record of rights or in a periodical record as to any right of which he is in possession may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act. ~~Now when there are two provisions of law one barring the jurisdiction of Civil Court, and the other conferring the jurisdiction upon the Civil Court then in the light of aforesaid principle of interpretation of law, it cannot be said that the provision barring the jurisdiction will prevail but the provision conferring the jurisdiction will not prevail.~~ ' The nutshell of the above discussion is that finding no force in this appeal, it is hereby dismissed.