An application under British Balochistan Rent Control Regulation II of 1945 (hereinafter referred to as the "Regulation") had been filed by late Abdul Haque the predecessor-in-interest of the respondents for eviction of the petitioner in respect of Ahata bearing No. I/120 situated in Cinema Road, Zhob. The said application had been fled as back as in 1982 when there was no separate sessions division at Loralai. It appears that the applicant filed list of witnesses and completed his evidence on 18-7-1992. It was the turn of the petitioner to file list of witnesses for which purpose the date of 5-7-1992 was fixed. However, on said date the Court was closed for summer vacations.
After when the Court reopened on 13-7-1992 the petitioner filed his list of witnesses on 16-7-1992.
2:. . The respondents moved an application under Order 16, Rule 1, C.P.C. Read with section 151, C.P.C.
Before the trial Court for rejection of list of witnesses on the ground that it was filed after expiry of 7 days. This application was heard and the Court rejected the list of witnesses filed by the petitioner.
The matter was fixed for recording statement of the petitioner on 8-9-1992.
3. The petitioner feeling aggrieved of the order dated 12-8-1992 passed by Senior Civil Judge, Quetta filed a revision in the Court of District Judge, Quetta which was transferred to the file of Additional District Judge-I, Quetta who was pleased to dismiss the revision petition by order dated 10-4-1993.
The petitioner has assailed two orders passed respectively by Senior Civil Judge and Additional District Judge-I, Quetta dated 12-8-1992 and 10-4-1993 in this revision petition.
4.Heard Mr. Azizullah Memon, Advocate for the petitioner and Mr. Muhammad Arshad Chaudhary, Advocate for the respondents.
5. At the very outset of the hearing learned counsel for respondents raised a preliminary objection that second revision before this Court is not maintainable, therefore, the same may be dismissed on this sole ground. Mr. Arshad Chaudhary contended that Additional District Judge-1, Quetta has already exercised his powers under section 115, C.P.C., therefore, present, petition being not maintainable under the same section may be dismissed as such. He relied on subsection (4) of section 115, C.P.C. Which speaks that no proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Judge.
6. However, counsel for the petitioner while meeting the preliminary objection contended that the matter pertains to Provincially Administered Tribal Areas (hereinafter referred to as "PATA") where Regulation II of 1945 as amended by Regulation V of 1954 is applicable in respect of rent matters and Civil Judge, Loralai has got the jurisdiction to entertain such proceedings. Since by an administrative order/notification Senior Civil Judge, Quetta has been empowered to entertain such proceedings pertaining to Loralai as there was no Civil Judge at Loralai at the relevant time, therefore, the respondents moved eviction application in the Court of Senior Civil Judge, Quetta. It was further contended that no right of appeal has been provided under Regulation II of 1945 and same was the position regarding revision in rent matters pertaining to PATA areas. The proposition whether a revision lies to the High Court came for consideration for the first time before Balochistan High Court as back as in 1979 and this Court gave an authoritative judgment as reported in PLD 1979 Quetta 118. It was held that right of appeal in cases of eviction is not available under the Regulation. However, as far as revision is concerned it was decided that same is competent. It was further decided in the said matter that provisions of Civil Procedure Code are not applicable under the Regulation. Mr. Memon also relied on a Division Bench judgment delivered by this Court as reported in PLD 1989 Quetta 54 wherein it was held that since section 2 of Law Reforms Ordinance (XIl of 1972) has not been extended to tribal areas, therefore revisional jurisdiction under section 115, C.P.C. Would only lie to the High Court and not to the District Judge. He, therefore, contended that revision petition was not maintainable before District Judge or Additional District Judge, Quetta.
Even though the same was presented before the District Judge by the petitioner, it could be returned to be presented before a Court of competent jurisdiction.
7. From the aforementioned contentions, the following points require consideration and determination:
(i) Whether present revision petition is maintainable before this Court; and (ii)Whether provisions of Civil Procedure Code are applicable, under Regulation 11 in rent proceedings, if not what would be the effect?
8. To start with, it may be observed that different law; have been made applicable in different parts of the Province even in civil matters. At present we are only concerned with the application of Regulation II of 1945 pertaining to rent matters. This Regulation was initially published in the Gazette of India on February 17, 1945. Section 1 of the Regulation is pertinent regarding the extent and commencement of this Regulation. The same therefore may be reproduced hereunder:-- ,
1. Short title extent and commencement.--(1) This Regulation may be called the British Balochistan Rent Control Regulation, 1945.
(2) It extends to the whole of British Balochistan.
(3)It shall come into force in such areas within British Balochistan on such dates as the Chief Commissioner may, from time to time, by notification in the official Gazette, direct.
(4)------------------------ Since the area falls in Zhob Town, known as Fort Sandeman the Regulation was extended to Fort Sandeman Town vide notification published in the Gazette of India on July 6, 1946 and the same is therefore reproduced hereunder:-- "No. 2408-G/45-46.--In exercise of the powers conferred by subsection (3) of section 1 of the British Balochistan Rent Control Regulation, 1945 (II of 1945), as in force in the Balochistan Tribal Areas, the Agent to the Governor-General is pleased to direct that the said Regulation shall come into force within the area of the Fort Sandeman Town as is included within the limits of Fort Sandeman Bazar for the purposes of the British Balochistan Bazars Regulation, 1910 (V of 1910) on the 25th June, 1946.
(2)------------------------------------------------------.
Thus it is clear that subject-matter in the present revision pertaining to eviction of the petitioner had to be decided under the Regulation II of 1945.
9. This Court had examined whether Civil Procedure Code shall be applicable to proceedings under Regulation II of 1945 or otherwise and came to the conclusion in case of Haji Sheikh Meraj-ud-Din and another v, Haji Seth Abdul Ghafoor Rishi PLD 1979 Quetta 118 that the Courts created by Civil Procedure Code are not vested with powers under Regulation to decide cases in accordance with provisions of Code. It was further held that such Courts by virtue of section 4 of Regulation were merely empowered to decide civil suits for eviction and to try cases under Regulation as well. It was further observed that Regulation II of 1945 is a special law having a special procedure. However, the Court acting under Regulation II of 1945 may seek guidance from the provisions of C.P.C. But to say that the Code of Civil Procedure is applicable under Regulation II of 1945 in strict senso would be wrong.
10. Furthermore we have already observed in the preceding para. Of this judgment that a Division Bench of this Court in the case of Khudai Rahim and others v. Mst. Noor Jamal and 2 others PLD 1989 Quetta 54 held that revisional jurisdiction under section 115, C.P.C. Would only lie to the High Court and not to the District Judge. Therefore, no other view can possibly be taken. Thus following with respect the dictum laid down in the aforementioned case, it is held that the revision petition before the District Judge, Quetta was not competent at all.
11. In such circumstances the learned District Judge instead of referring the case to Additional District Judge-I, Quetta ought to have returned the revision petition to the petitioner for presentation before the High Court. But instead of doing so the same was entertained and decided.
A Court which is not empowered under law to exercise jurisdiction cannot be vested with such powers merely because a party has approached it. For exercise of jurisdiction a Court must necessarily be vested with such powers and the Court cannot exercise jurisdiction merely because that a party under a misconception had invoked its jurisdiction. Thus the contention of Mr. Chaudhary that since the petitioner himself has approached the District Judge, therefore, the District Judge was competent to exercise jurisdiction under section 115(2) of C.P:C. Is devoid of any force and not tenable in law.
From the aforementioned discussion I have come to the conclusion that no revision was competent before the District Judge and the memo, of revision petition presented before it ought to have been returned to the petitioner for presentation before the High Court. After having held that Civil revision was not competent, the question that second revision petition before this Court is not maintainable loses its force.
Adverting now to the pertinent question whether the list of witnesses submitted by the petitioner after expiry of 7 days could be cancelled by the Senior Civil Judge under Order 16, Rule 1, C.P.C., the natural and logical answer would be in negative, for the obvious reason that the provision, of C.P.C.
Were not applicable to proceedings under Regulation 11 of 1945. Therefore, order dated 12-8-1992 passed by Senior Civil Judge and impugned in this petition is not tenable in law and the same is set aside. Resultantly it is concluded that since provisions of Code of Civil Procedure were not applicable in rent proceedings under Regulation II of 1945, therefore, the Senior Civil Judge as Rent Controller was not competent to have cancelled the list of witnesses under Order 16, C.P.C. The petition is, therefore, accepted and case is remanded to the trial Court to summon the witnesses of the petitioner and after recording their statements should conclude the matter in accordance With law on its own merits. However there shall be no orders as to costs.