' Through this revision petition under section 115, C.P.C. The petitioners have called in question order dated 15-2-1995 passed by 1st Additional District Judge, Larkana in Civil Appeal No,32 of 1994 whereby order of the executing Court date '19-5-1994 was upheld and the petitioners' appeal was dismissed with costs.
2. On 15-12-1981 respondent filed suit against the petitioners for recovery of Rs,1,05,527 as compensation plus interest at he rate of 11% with costs. This suit was decreed by the learned 1st Senior Civil Judge, Larkana vide judgment dated 14-3-1989. Against the said decree, present petitioners filed first appeal bearing No,26 of 1989 before the Sukkur Bench of this Court which was dismissed on the ground of non-prosecution. Restoration application filed by the petitioners was also dismissed in 7-5-1994. Thereafter, the petitioners did not go to the Supreme Court and thus the decree passed by the learned trial Court attained finality. Then the respondent filed execution application which was allowed by the executing Court on 19-5-1994 and the objections filed under section 47, C.P.C. By the present petitioners were dismissed, against which they filed first appeal (Civil Appeal No,32 of 1994) which was also dismissed vide the impugned judgment.
3. I have heard Mr. Abdul Rahman Baloch, Advocate for petitioners and Mr. Ghulam Sarwar Abbasi, Advocate for respondent. The first objection raised by Mr. Baloch is that the judgment/decree passed by the 1st Senior Civil Judge, Larkana is without jurisdiction. In support of his contention, learned counsel for petitioners has referred to sections 3(3)(6) and 11 of the Rice Milling Control and Development (Repeal) Ordinance, 1977 (PLD CS 428) (hereinafter referred as Ordinance (XX of 1977). In order to appreciate arguments of Mr. Baloch, it would be advantageous, if all the relevant three provisions of Ordinance XXX of 1977 referred above are reproduced:--
(2) .............................
(3) No claim, suit, prosecution or other legal proceedings arising out of the acquisition or return of an establishment shall lie against the Federal Government or the Corporation or any officer or employee of the Federal Government or the Corporation."
(4) .
(5) ..
(6) In the case of any dispute between the previous management of an establishment and the Corporation regarding the assets or liabilities of the establishment, the matter shall be referred to the Federal Government whose decision shall be final.
11. Bar of jurisdiction.--(1) No Court shall call into question or permit to be called in question any provision of this Ordinance or of any rule or order made, or anything done or any action taken thereunder."
4. It would be pertinent to mention here that during the course of arguments, both the learned counsel have referred to Exh.94 which according to the petitioner is an Award while according to the respondent, it is a mere letter dated 1-9-1988. This letter/Award was issued in view of the fact that the respondent Rice Mill which was nationalized on 17-7-1976, after its denationalization, was transferred/possession handed over to the respondent on 5-10-1980. The petitioners paid Rs,75,000 lump sum to the respondent to cover the damages. However, the claim of respondent for 11% compensation was not paid as a result of which they filed the present suit. In this Exh.94 in para. No,4 the claim of respondent Was not specifically denied by the Federal Government but it was stated that such claim would be examined in consultation with the Ministry of Law and that such decision would be intimated to Rice Milling Corporation of Pakistan (petitioner No,2) in due course.
It is an admitted fact that till this date, even after expiry of more than 17 years, no decision has been taken in furtherance of Exh.94 which is dated 1-9-1980. Mr. Abdul Rahman, Advocate for the petitioners was not able to explain such long delay on the part of Federal Government but insisted that the matter is still pending consideration before the Federal Government and the suit was, therefore, premature.
5. The second objection of Mr. Baloch is that no cause of action was available to the respondent, to file a suit against the Federal Government. On such objections learned trial Court has framed the following three issues:- "(6) Whether the plaintiff has no cause of section?
(7) Whether the suit is not maintainable?
(8) Whether the Court has no jurisdiction?"
6. While deciding the above three issues, the trial Court held that the defendants (now petitioners) have failed to prove any of these issues nor any provision of law was cited. Accordingly, all these three issues were decided in negative. Due to dismissal of appeal for non-prosecution such findings of the learned trial Court remained intact. The learned counsel appearing for the petitioners made attempts to reopen these issues through objections filed under section 47, C.P.C.
Before the executing Court which was dismissed even by the first appellate Court after holding that neither the suit was barred nor suffered from any jurisdictional defect.
7. Subsection (3) to section 3 of Ordinance XXX of 1977 bars claim, suit, prosecution or other legal proceedings arising out of any acquisition or return of an establishment which may be filed against the Federal Government or the Rice Milling Corporation of Pakistan. Subsection (6) to section 3 provides remedy to an aggrieved party to refer any dispute in respect of assets or liabilities to the Federal Government whose decision shall be final. In the instant case, it was proved that such dispute was referred by the plaintiff/respondent which is apparent from Exh.94 dated 1-9-1980. I have already observed in the earlier part of this judgment that even after expiry of 17 years, neither the petitioner No,1 took any action nor petitioner No,2 namely Rice Milling Corporation of Pakistan was intimated about the fate of grant of 11% compensation. The present suit was filed on 19-12-1981, 15 months after issuance of this Exh.94. It would be a case of real hardship, if in such circumstances a plaintiff is asked to wait for the decision of the Federal Government for a period which is spread over 17 years. Apart from this, the bar contained in subsection (3) is in respect of acquisition or return of an establishment while the bar contained in subsection (6) refers to the assets or liabilities of the establishment. In the instant case, the plaintiff has prayed for the compensation as guaranteed to them per section 6(1) of the Ordinance XXX of 1977 which is reproduced as under:- "6. Compensation.--(1) The Corporation shall pay compensation in respect of an establishment at the rate of 11 per cent. Per annum of the amount determined as payable in accordance with paragraphs 1 and 2 of the Schedule to the repealed Act for the period the ownership and management of the establishment remained with the Corporation."
8. The issue as to when plaintiff/respondent was entitled to receive physical possession of its rice mill and the issue when such possession was delivered have already attained finality and I am of the considered view that it cannot be re-opened through the present proceedings. Even otherwise, the petitioners have not argued their case on merits but have confined their submissions to the legal objection. The petitioners who are Federal Government and a statutory corporation have missed a clear opportunity of re-agitating such questions before the Honourable Supreme Court of Pakistan in petition seeking leave to appeal. As far as facts of he plaintiff's case are concerned, it now stands concluded by concurrent findings. The present petition arises from an order passed by the executing Court and, therefore, I have confined myself to the question pertaining to the legality of the decree and jurisdiction of the trial Court in passing the said dercee. No perversity or gross misreading of evidence was pointed out by the learned counsel for the petitioners which may invite interference from this Court. I am fortified in my view by the case of Kanwal Nain And 3 others v. Fateh Khan and others (PLD 1983 SC 53) wherein Full Bench of the Honourable Supreme Court while defining powers of a High Court under section 115, C.P.C. Held that the section empowers the High Court to satisfy itself upon three matters before interfering with the order of subordinate Courts; (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising such jurisdiction that Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, which may have affected the ultimate decision. For further reference see case of Venkatagiri v.
H.R.E. Board, Madras PLD 1949 PC 26 and the case of Umar Dad Khan v. Tila Muhammad Khan PLD 1970 SC 288.
9. Mr. Baloch has also referred to the case of Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCM R 1908 and the case of National Development Finance Corporation v. M/s. Leepa Shoes Ltd., Mirpur (1992 M LD 474). In the first cited case the question before the Honourable Supreme Court was in respect of section 12(2), C.P.C. And Order XXI, Rule 97, C.P.C. It was held, inter alia, that the Civil Courts have jurisdiction to try all suits of civil nature excepting those cognizance of which expressly or impliedly is barred. It was further held that the suit filed (in the reported case) was competently filed as it was not barred by any provisions of the Sindh Rented Premises Ordinance, 1979. The rule laid down by a learned Single Judge of Azad Jammu and Kashmir High Court in the case of N.D.F.C. (supra) is not relevant for the present controversy as it arises out of an application decided under Order VII, Rule 11, C.P.C.
10. It was also argued by Mr. Abdul Rehman Baloch, learned counsel for the Islamic Republic of Pakistan that the suit was not maintainable in view of section 3(6) of the Ordinance, 1977 inasmuch as the settlement of dispute was pending before the Federal Government and that the suit was filed before passing of any decision on the same. No doubt there is a provision in subsection (6) to section 3 of the Ordinance, 1977 and for which the matter was referred to the Federal Government which remained undecided, even after expiry of 15 months at the time when the suit was filed. It is admitted by the learned counsel for the petitioners that it has not yet been decided which means that it is now 17 years and the so-called dispute has remained still undecided. Somewhat identical objection was raised in Messrs Faridsons Ltd., Karachi, and Messrs Friederike Ltd., KarT.Chi v.
Government of Pakistan and another PLD 1961 SC 537 where the maintainability of a Constitutional petition was challenged on the ground that an alternate remedy was available to the petitioner by way of appeal. The objection was overruled on the ground that an appeal had been filed four (4) years ago in that case but no action was taken till filing of the constitutional petitions. It was held by a Full Bench of the Hon'ble Supreme Court of Pakistan in that case that "there is a limit to the patience the subject must exercise before he seeks alternative relief." It was held that such alternate remedy was not bar to issue a writ.
11. In my considered view, since the Federal Government failed to decide the question of compensation as provided under section 6(1) of the Ordinance XXX of 1977, as such the plaintiff was entitled to maintain a suit under section 9, C.P.C. There appears no specific bar in the said Ordinance. Reference to section 11 of the Ordinance XXX of 1977 is not relevant as it bars the jurisdiction of a Civil Court from calling into question any provision of the said Ordinance or any rule or order made or anything done or any. Action taken thereunder. In the present case, the respondent/plaintiff has neither challenged any provision of the said Ordinance or any rule framed thereunder nor has challenged any order or action taken thereunder. In fact, the suit was filed when the Federal Government failed to take any action for more than 17 years. Since the suit was not barred, I am not inclined to interfere with the impugned judgment. Accordingly civil revision petition stands dismissed with no order as to costs.