' ABDUL KARIM KHAN KUNDI, J.---This writ petition arises in the background of facts that a suit for declaration filed by the petitioner as against respondents Nos.4 to 14 was proceeded by EA.C.
Timargara with powers of Deputy Commissioner, Dir (respondent No,3) first in framing issues on the points of res judicata and estoppel and thereafter decided the issues against him, in spite of the petitioner's objection to the assumption of his jurisdiction as such that he could only decide the issue of limitation and no other issues of res judicata and estoppel which were to be referred for adjudication to Jirga. Petitioner went in appeal before the Additional Commissioner (respondent No,2) and after his failure in appeal he filed a revision before the Additional Secretary, Home (respondent No,1) but to no better fate and at last invoked the Constitutional jurisdiction of this Court for holding the judgments and orders of all the three PATA forums without lawful authority and to be of no legal effect.
2. At the hearing thrust of the argument was that under section 3 of the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No,11 of 1975 (hereinafter referred to as Regulation) all civil cases except cases involving interest of minor or a person of unsound mind, cases with provisions for arbitration in contract between the parties and cases by or against Federal or the Provincial Government or a Public Corporation or public servants acting in charge of duties shall be referred to a Jirga constituted thereunder for adjudication in accordance with the Regulation. Reference was made to section 4(1) of the Regulation providing for a constitution of and reference of dispute to a Jirga that on an application in writing to the Deputy Commissioner for the adjudication and settlement of civil cases the Deputy Commissioner shall constitute of Jirga in accordance with section 5, and by order in writing refer the dispute to a Jirga for a finding on such matters or issues specified in the order. Subsection (2) thereof, no doubt, provides that a case shall not be referred to a Jirga if a civil suit in respect thereof would be time-barred under any `rewaf or custom or usage having the force of law. Subsection (3) has further dealt with jurisdiction of a Deputy Commissioner that an application under subsection (1) for adjudication of a case shall be made in the case of a dispute relating to immovable property to the Deputy Commissioner within whose territorial jurisdiction such property is situate and if the property is situate within the jurisdiction of different Deputy Commissioners, then application may be made to any one of the Deputy Commissioners and in case of a dispute relating to any other matter the application shall be made to the Deputy Commissioner within the local limits of whose jurisdiction the cause of action has arisen. It was contended that the provisions of sections 3 and 4 of the Regulation were to vest a power in the Deputy Commissioner to decide the issue of limitation only by himself and if he finds that the suit is time-barred under any `rewaf or custom or usage having the force of law he may dismiss the suit and may not refer the case to Jirga but if he finds that a civil suit in respect of the case would not be time-barred under `rewaf or custom or usage having the force of law he would be placed under obligation to refer the case for adjudication to the Jirga provided, however, that the case must not involve the interest of a minor or a person of unsound mind or provisions of arbitration having not been made applicable by a contract between the parties or the case of a Federal or Provincial Government or a public corporation or a public servant functioning as such, being not a party to the suit. Accordingly, it was argued that the defendants who had raised the objections of res judicata and estoppel and also limitation what the Deputy Commissioner was supposed to do and the other PATA forums also to follow him that they were to decide the issue of limitation and there was to be obtained adjudication from Jirga on issues of res judicata and estoppel and other issues arising out of the pleadings but herein the learned Deputy Commissioner and the other PATA forums did a novel thing that the issue of limitation was not resolved and instead they proceeded to non-suit the plaintiff-petitioner on the issues of res judicata and estoppel falling out of their purview and jurisdiction and that their judgments and orders should be, therefore, declared passed without lawful authority and to be of no legal effect in the exercise of the Constitutional jurisdiction of this Court.
3. On the other hand, learned counsel for the defendants respondents, argued that the plaintiff- petitioner was a chronic litigant having dragged the defendants-respondents into litigation in vague, false, misconceived and vexatious cases and that the PATA forums had rightly non-suited him on the principle of res judicata and estoppel and that since justice has been done hence this Court need not interfere in its extraordinary jurisdiction to set at naught the just orders of the PATA forums for technical reasons. In support reliance was placed on PLD 1977 Quetta 39 in which the provisions of Civil Procedure (Special Provisions) Ordinance, 1968 were interpreted and it was held that the Deputy Commissioner shall examine the case before referring it to a Jirga to find out if a legally referable cases existed and dispute was covered by the meaning assigned to the word and that if the Deputy Commissioner finds that there was no dispute referable to Jirga for adjudication he shall proceed to dismiss the case. The said judgment has, however, also laid down that if question emanate from the pleadings of the parties as asserted by one party and contradicted by the other then the same question shall not be determined by the Deputy Commissioner at pre- reference stage since the determination of such question shall be the exclusive function of a Jirga.
The above authority may not help the respondents since in the said case defendants had raised objection to the maintainability of the suit but without disposal of the objection the Deputy Commissioner had referred the case for adjudication to a Tribunal which decision was reversed in appeal by the Commissioner but in revision on acceptance the order of Commissioner was set aside and instead the order of the Deputy Commissioner was maintained with direction to him to refer the case to Tribunal for adjudication. Defendants had filed a writ petition which was dismissed, however, during the course of discussion it was observed that it was the duty of the Deputy Commissioner to examine the case before referring it to Tribunal and to find out if there was a legally referable case and it was the legal dispute with regard to some legal claim or legal liability of some interest recognized by law as against an absurd, fantastic and frivolous claim that it can be referred to Tribunal for adjudication. West Pakistan. Ordinance, No,1 of 1968 has provided for dispute of a civil nature referable to Tribunal for adjudication. Regulation No, II of 1975 (PATA Regulation) has provided for reference of all cases of ,4vil nature except certain categories of cases to be referred for adjudication to Jirga, however, no doubt, vesting the Deputy Commissioner with powers to withhold reference of a civil case to if the suit in respect thereof would be time- barred under any `rewaf or custom or usage having the force of law. The said authority would, therefore, be otherwise not applicable to cases under the PATA Regulation.
4. There was made a reference to an unreported judgment of the Supreme Court of Pakistan in C.P: No,96-P of 1990 titled Abdul Hamid v. Mst. Shah Zuban and others decided on 5-12-1990. In the said case the Deputy Commissioner after finding the suit within time had referred the case to Jirga for adjudication and his orders were upheld by the Additional Commissioner, but Home Secretary to the Government of N.-W.F.P. The revisional forum, on examination, found that Amir Khan from whom the plaintiff claimed his title was not the owner of the property and since Amir Khan's pre- emption suit has earlier been dismissed by the appellate forum in this regard and, as such, the defendants' revision was accepted and the plaintiffs' suit was dismissed with which finding the High Court has also concurred at the hearing of the writ petition and declined to interfere with the well-reasoned decision of the revisional authority and the Supreme Court also dismissed the petition under observation that the suit of Amir Khan the predecessor of the plaintiff has been earlier dismissed and, as such, he could not plead any further title with him. It was, contended that the High Court and the Supreme Court have impliedly determined that the PATA forums could adjudicate upon the factual controversy without resort of reference to Jirga. We could, however, not be persuaded to hold this view since the High Court and the Supreme Court have declined to invoke their Constitutional jurisdiction to interfere with the orders of the PATA forums found otherwise just. This authority would, therefore, not serve as ratio decidendi to lay down a law that the PATA forums can' sit in adjudication on other controversial facts than the question of limitation without obtaining a verdict from Jirga by a reference.
5. Besides the legal position enunciated above herein it was also found that the issues of res judicata and particularly estoppel were to call for evidence for and against for their resolution while the PATA forums have proceeded to determine those issues with reference to extraneous matters not forming part of the relevant record.
6. In view of the foregoing discussion we would accept this writ petition, hold and declare the impugned judgments and orders of the. PATA forums without lawful authority and to be of no legal effect and would remand the case to the trial Court with direction that he should first mind to dispose of the question of limitation as raised as a preliminary issue and after deciding the same, if in a way to hold that case within time he should refer the case for adjudication to a Jirga but if he finds the case as time-barred he should dismiss the case. Parties are left to bear their own costs.