1. ' These five revision petitions involve common question of law and are from the common judgment dated 7-2-1993 and therefore can conveniently be disposed of by a common judgment.
2. ' As the facts are not in dispute in these matters, it is not necessary to state the facts in each one of them. It will suffice if I refer to the relevant facts in Revision Petition No, 118 of 1993.
3. ' The facts leading to the filing of the above petition are that the petitioners filed suits for declaration and injunction. The petitioners since 1965 are in quite open (hostile) and exclusive possession of all waste land abutting Plot No, 170, Artillery Maidan, Shahrah-e-Iraq near Passport Office, Karachi. The case of the petitioner, as set out in the plaint, was that there' are several shops while going towards Saddar, there are several shops on the same road, there are fruit juice shops.
4. According to him, all the shops are very old and are situated by the side of the footpath. The petitioner had electricity and telephone at his shop and the respondent No, 1 granted trade licence to the petitioner for running the business at the shop in question. It is the case of the petitioner that the respondent No,3 for himself and as attorney of the legal heirs of late Dr. Major SA. Hassan, owner of the Plot No,170, Artillery Maidan while taking possession of the said plot in execution of a decree passed by this Court tried to evict the petitioner alongwith other shopkeepers in collusion with some officials of the respondent No,
1. The petitioner and other shopkeepers had to file suit against them and obtained injunction. This Court in its revisional jurisdiction directed the respondent No, 1 not to evict the shopkeepers without due process of law.
5. ' It is further case of the petitioner that the owner of Plot No, 170, again hatched conspiracy and in collusion with officials of the respondent No, I issued notice dated 27-10-1992 to remove the encroachment of shop within three days. The further case of the petitioner is that the notice has been issued with mala fide intention and in collusion with the officials of the respondent No, 1 at the instance of the respondent No,
3. It is alleged that the respondent No, 2 who issued the notice, is not an authorised officer to issue the said notice. It is also alleged that the shop is not on the footpath.
6. The respondent No, 3 filed an application under Order VII, Rule 11, C.P.C. In the above suit for rejection of the plaint on the grounds (1) the suit is without cause of action as it is the case of proved encroachment on Government land and notice under Section 3 of the Sindh Public Property (Removal of Encroachments) Act, 1975 has been given according to law; (2) the suit is barred under sections 108 and 113 of the Sindh Local Government Ordinance, 1979.
7. ' The trial Court after hearing the arguments of the learned counsel appearing for the parties, accepted the application and rejected the plaint holding that the suit is barred under Section 11(2) of the Act. On appeal, the District Judge took the view that the suit is barred under Section 11 of the said Act. He further held that the impugned order does not suffer from any infirmity and is legal and proper, hence no interference is called for in the appeal. The petitioner challenged the judgment in the revision petition herein.
8. ' I have heard Mr. Yawar Farooqui, Mr. Muhammad Yasin Kiyani and Mr. Habibullah Samo, learned counsel appearing for the petitioner, respondents Nos. 1 and 2 and respondent No, 3 respectively.
9. 'Mr Yawar Farooqui, learned counsel appearing for the petitioner vehemently urged before me that on the basis of the averments made in the plaint, cause of action has been disclosed and if all the allegations made in the plaint are taken to be true, the plaint is not barred under the provisions of the Act.
10. ' The main question which arises for consideration is whether in a suit instituted by the petitioner in the civil Court challenging the legality of the notice, the Court is excluded from deciding the question as to whether the notice is mala fide and has been issued by an unauthorised person. The determination of this question depends to large extent on the relevant provisions of the Act under consideration. Section 3 of the Act provides that: "Government or any authority or officer authorised by Government in this behalf may require the person directly or indirectly responsible for encroachment to remove such encroachment together with the structure, if any, raised by him on the public property, within the period not less than three days as may be specified in the order."
11. ' Section 11 of the Act provides that: "No Civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act, or anything done or intended to be done under this Act."
12. ' Statutory provisions which seek to limit the ordinary jurisdiction of the Court have a long history.
13. Under Section 9 of the Code of Civil Procedure, the Courts have jurisdiction to try all suits of civil nature excepting suits for which their cognizance is either expressly or impliedly barred. Statutes often seek to exclude the jurisdiction of the Civil Court to review administrative actions taking them by various formulae for the purpose. A statute may make the orders made under it as final. For example, Section 11 provides that no Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act, anything done or intended to be done under this Act. The question as to the extent to which such formula excludes the jurisdiction of the Civil Court has posed problems which are not always easy problems for solution. The trend of judicial decisions illustrates the attempts made to strike a balance between the ordinary right of a citizen to have recourse to Court of law for the determination of his rights and the legislature's intention to exclude the jurisdiction of the Civil Court to entertain a challenge on the functions assigned to and the decisions reached by various statutory authorities, which have grown as a result of the expansion of the activities of the State in varied spheres of social and economic life. Willes, J. In Wolvertamption New Water Works Co. v. Hawkersford (1859) SCB (NS) 336 = 28 LJ CP 242=7 WR 464 stated that principle that where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it, the party must adopt the form of the remedy provided by the statute. This principle was approved by the House of Lords in Neville v. London Express Newspaper Limited (1919) AC 368 = 120 LT 299. In the case of Secreta. y of State v. Mask & Co., 671 A. 222= AIR 1940 PC 105, it has been laid down by the Judicial Committee that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that "it is also well-settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure".
14. ' In the case of Zafar-ul-Ahsan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan) PLD 1960 SC 113, the Supreme Court had occasion to consider in detail as to in which circumstances the suit would be maintainable in the Civil Court and in which not. The following propositions were laid down:---
(1) the authority should have been constituted as required by the statute;
(2) the person proceeded against should be subject to the jurisdiction of the authority;
(3) the ground on which an action is taken should be within the grounds stated by the statute;
(4) and the order made should be such as could have been made under the statute; and
(5) these conditions being satisfied, the order is complete.
15. ' The principles laid down in the above-referred case were re-affirmed in four subsequent decisions of the Supreme Court, namely Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671, Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698, Ghulam Hussain and 3 others v. Khan Mukarab Khan and 3 others 1974 SCM R 365 and Mr. Akbar v. The State 1975 SCM R 281.
16. ' In Province of East Pakistan and 5 others v. Syed Hatem All and 3 others PLD 1968 SC 78 notices were issued by the Government under the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1953. The respondents challenged the validity of the notices on the ground that it was not within the powers of the Government to issue notices. It was held "that it is well-settled that if any person aggrieved by an order made under the Act, designs to question the validity thereof on the ground that it is not within the power of the Act or that any requirement of the Act has not been complied with, the Court may if satisfied that the order is not within the powers of the Act or that the interests of the applicant have been substantially prejudiced by any requirement of the Act not having been complied with, quash the order".
17. ' In Sardar Muhammad and 4 others v. Municipal Committee, Jhelum City, through Chairman, Municipal Committee, Jhelum PLD 1970 SC 497, the Supreme Court interpreted the word "encroachment". It was held that the word "encroachment" is used in two different senses. Firstly, in the sense, to intrude usurpingly others territory rights. Secondly, in the sense that construction is put upon a street under a licence from the Municipal Committee in whom the streets vest. It is encroachment as it intrudes upon a public street though made with the permission of a Municipal Committee."
18. ' In Syed Weedhal Shah and 8 others v. Province of Sindh and another PLD 1978 Kar. 464, it was observed, in the context of the provisions contained in Section 11 of the Act, that the ouster of jurisdiction of a Civil Court in respect of a civil suit is not to be readily inferred.
19. ' In Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd. 1991 M LD 284, it was observed that even where the jurisdiction of the Civil Court is barred and conferred upon Special Tribunals, the Civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide. It was further observed that: "Section 108 of the Sindh Local Government Ordinance states that any person aggrieved by an order passed under said Ordinance or the rules or bye-laws, may appeal to such authority, in such manner and within such period, as may be prescribed. This provision could apply, if an order "under the said Ordinance" had been passed against the respondent. In this view of the matter, Section 108 of the said Ordinance would not come in way of the respondent. For similar reasons, Rule 4 of the Sindh Local Councils (Appeals) Rules, 1982 would not bar trial of the present suit."
20. ' In Ghulam Ali v. Asmatullah and another 1990 SCM R 1630, it was observed that: "After hearing the learned counsel for both the sides, we have not been able to agree with the reasoning of the High Court. Whether or not oral evidence could be led to support the assertion made in the aforereproduced part of the plaint, it is an admitted position that the assertions made in the plaint, as they were, had to be seen for purpose of determining; whether, the plaint disclosed any cause of action. It is not denied that if the said reproduced averments are kept in mind regardless of the fact, whether the respondents/plaintiffs would be able to prove them or not, they do disclose sufficient cause of action to proceed further with the suit. It is also not denied from the respondents' side that lack of proof or weakness of proof in the circumstances of this case does not furnish any justification for coming to the conclusion that there was no cause of action shown in the plaint."
21. ' I am of the humble view that non-compliance with the provisions of the statute to which reference has been made by Judicial Committee in AIR 1940 PC 105 and PLD 1960 SC 113, referred to above, must mean noncompliance with such provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the notice issued by the authority in question. It is only in those cases where the defect of the procedure is so fundamental that it goes to the very root of the order and makes it invalid in law and void, the Civil Court can exercise its jurisdiction notwithstanding provisions to the contrary contained in the statute. It is well settled that where a Tribunal or Authority acts without jurisdiction, its decision is a nullity.
22. ' In the light of the principles discussed above, one has to consider the question raised in the present cases regarding the competence of the Civil Court to declare the notice as illegal, mala fide and unjustified. In the suits filed in the present cases before the Civil Court, the notices were challenged on the pleas that the notices have been issued with inala fide intention and in collusion with the officials of K.M.C. At the instance of respondent No, 3 and the respondent No, 2 who has issued the notices, is not an authorised officer to issue the said notices. I have examined the contents of the plaints to find out if the plaints are barred under the provisions (sic) have stated that the notices have been issued with mala fide intention and in collusion with the officials of K.M.C. At the instance of the respondent No,
3. It is alleged in para. 9 of the plaint that the defendant No,2/respondent No, 2 who issued the notices is not authorised officer to issue the said notices.
23. How the petitioners will succeed at the trial to substantiate these allegations is not to be considered by the Court at this stage. Prima facie, on the face of these allegations in the plaint, it cannot be said that the suits are barred by the provisions of Section 11 of the Act.
24. ' It is well-settled that in order to reject a plaint under Order VII, Rule 11, C.P.C., the plaint must be shown to be barred under some law on the basis of the averments made in the plaint. The Court at this stage is neither entitled to look into the pleas raised by the defendant nor can examine the merits of the allegations made in the plaint. Every allegation made by the plaint has to be accepted as correct while rejecting the plaint under Order VII, Rule 11, C.P.C. The petitioners averred mala fide against the respondents. It is well-settled legal position that where mala fides is alleged, the trial Court is not justified to reject the plaint without holding factual inquiry. It is also well-settled that where bar of jurisdiction is raised, the trial Court should frame issues including legal issues and decide the legal as well as the issue with regard to the bar of jurisdiction.
25. ' For the reasons stated above, the common judgment and the orders of I D the Courts below suffer from material irregularity or made in excess or failure to exercise jurisdiction and as such I set aside the same and remand the suits to Vlth Senior Civil Judge, Karachi South. The suits are deemed to be pending. The parties are directed through their counsels to appear before the VIth Senior Civil Judge, Karachi South on 4-12-1993. The respondents are directed to file written statements on or before 4-12-1993 if not filed earlier. The issues should be framed on 11-12-1993. The learned Senior Civil Judge is directed to decide the suits in accordance with law within four months from 4-12- 1993.