' 'The petitioner purchased three pieces of land of which land covered by Khasra Nos. 1079/540 and 536 is situated in Mahal Karaz Sher Dil, Monza Killi Gui Muhammad Tappa Durrani, Tehsil Quetta while land under Khasra No, 1078/541 is situated in Mahal Karea Nari, Monza Killi Caul Muhammad Tappa Durani, Tehsil Quetta from respondents Nos. 2 and 3. The pieces of land bearing Khasra Nos.
1079/540 and 1078/541 belonged to respondent No, 2 and were sold by him to the petitioner on 9th October 1970 whereas the third piece of land bearing Khasra No, 536 belonged to-respondent No, 3 and was sold to the petitioner on 9th December 1970. The sale took place through mutation in revenue record.
2. On 9th August 1971 the respondent No, 1 filed a suit for possession of land covered by Khasra Nos.
1079/540 and 536 through pre-emption which was sold by the respondent No, 2 to the petitioner, in the Court of the Assistant Commissioner, quetta, respondent No, 5, who obtained written statement from the petitioner and proceeded to constitute a tribunal within the meaning of section 5 of Civil Procedure (Special Provisions) Ordinance, 1968 (hereinafter referred to as "the Ordinance") for the trial of the case.
3. The petitioner who had raised various objections to the maintainability of the suit felt aggrieved by the fact that these objections had not been disposed of by the respondent No, 5 before constituting the Tribunal. Accordingly he filed an appeal to the Commissioner which was allowed on 19th June 1973. The respondent No, 1 filed a revision petition against the order of Commissioner, Quetta Division before the Revenue Commissioner, Baluchistan which was allowed and directions ,were given to the respondent No, 5 to refer the case to the Tribunal for adjudication.
' The petitioner who is aggrieved by the order of Assistant Commissioner, dated 21st May 1973 whereby he referred the case to the Tribunal before disposing of the objection raised by him and by the order of the Revenue Commissioner who reversed the decision of the Commissioner, Quetta Division has now come up in this Constitution Petition.
4. The main grievance of the learned counsel for the petitioner is that the reference of the case could not be ordered without first disposing of the objections raised by the petitioner as the same indicated that no dispute to the Tribunal for adjudication existed between the /males. According to him the plaint did not prima facie disclose any cause of action and was therefore liable to be summarily dismissed.
Elaborating the point he argued that from the perusal of the plaint it was obvious that no demands were made by the respondent No, 1, and he also had no preferential claim over the petitioner. He also did not claim pre-emption of the entire property sold by the revondents Nos. 2 and 3 to the petitioners hence on these grounds the suit was liable to be orgisinissed and the reference was not likely to serve any useful purpose as the same result would have followed after the conclusion of proceedings by the Tribunal. He further argued that the law enjoined that the Deputy Commissioner should not act mechanically in referring the cases to the Tribunal, but he should apply his mind to the facts of each case and examine if a determinable dispute existed between the parties er not. If some eat at flaw existing in the plaint came to his knowledge he should refuse to refer the case to the Tribunal and save the parties from unnecessary obliteration and expenses.
5. In the light of the above argument the question that arises for determination is whether the Deputy Commissioner functioning under the Ordinance should refer all eases of civil nature to tae Tribunal under section 5 of the Ordinance cr he should see if a determinable dispute capable of adjudication existed between the parties or not, and if he found that the dispute was not such whether he should himself reject the plaint or leave it to the discretion of the Tribunal to give a finding on tee maintainability or otherwise of the case. In case it was held that the Deputy Commissioner should examine this point at pre-reference stage then what should be the scope and extent of his enquiry in order to distinguish between determinable and not determinable disputes. In this connection it would be important to peruse sections 3 and 4 of the Ordinance so as to be acquainted with the meaning of the word 'dispute' used in these sections, besides appreciating the scheme of law. These two sections deal with the pre-reference stage of the case "Section 3. Certain disputes to be adjudicated upon under this Ordivance.-(1) Notwithstanding anything contained in any other law for the time being in force, all disputes of a civil nature, other than any dispute to be determined in accordance with the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 1961) or the Conciliation Courts Ordinance, 1961 (XLIV of 1960, shall be adjudicated upon in accordance with the provisions of this Ordinance section 4. Constitution of and reference of dispute to a Tribunal - Where any party to a dispute, not being a dispute arising in or relating to any area specified in the Second Schedule, makes, or all parties to a dispute arising in or relating to any area specified in the Second Schedule, make an applicatiou in writing to the Deputy Commissioner, for the adjudication or settlement of such dispute, the Deputy Commissioner shall constitute a Tribunal in accordance with section 5, and by order in writing, refer the dispute to the Tribunal for a finding on such matters or issues as may be specified in the order."
' Both sections 3 and 4 use the words "disputes of civil nature". The words "of civil nature" do not require much discussion, as it is understandable that all cases in contradistinction to criminal cases for which another special law by the name of Criminal Law (Special Provisions) Ordinance, 1968, was promulgated simultaneously with the Ordinance will be disputes of civil nature. So far as the word "dispute" is concerned it has not been defined in the Ordinance. However the word is not uncommon. Among other enactments it has also been used in Arbitration Act, Frontier Crimes Regulations and in section 145, Cr. P. C. It would be of advantage to advert to the meaning of the word 'dispute' before proceeding further.
6. In Shorter Oxford English Dictionary the word 'dispute' is defined to mean "the Act of arguing against ; controversy ; and in weakened sense, a difference of opinion, a quarrel".
' In "Caw Terms and Phrases" by K. J. Aiyers, dispute with reference to ,section 145, Cr. P. C. Is defined to mean a reasonable dispute, a bona fide dispute, a dispute between parties who have each semblances of right or supported right (189 I C 455). In the same book with reference to section 54 of the Bombay Cooperative Societies Act the word 'dispute' is construed thus "dispute implies some kind of disagreement between the parties concerned 7 some reference to a legal claim or liability".
(Dinkon Wasudeo N. Registrar, Cooperative Societies (1).
' In Farwood v. Watney (21 which was a case pertaining to arbitration it was held that the term 'dispute' covered "disputes of law" as well as "disputes of facts".
From the above references it is evident that the word 'dispute' would mean a legal dispute, a reasonable dispute and a dispute, whether it is in rem or in persona with regard to some legal claim, legal liability or some interest recognized by law as against an absurd, fantastic or frivolous A claim, or claims which are not enforceable under law for reason of their being opposed to public policy or based on a wagering contract etc. The frame of the suit should also be such that suit should not fail ultimately on the ground of defective frame of suit. Such defective frame of suits may include a suit by a minor or against a minor or an insane person without a guardian ad litem, or next friend as the case may be. It is so B because if such a defect is apparent from the plaint no useful purpose would be served by referring such a case to a Tribunal as it is bound to fail on this ground alone. The learned counsel for the respondents argued that no rules had been framed under the Ordinance to require the drafting of the plaint or written statement in a prescribed manner as is provided in the Code of Civil Procedure and therefore a party could not be compelled to draft the pleadings in a particular manner. It is true that there are no rules C as yet but it is necessary for the contestants to give sufficient details in their pleadings otherwise the same will be incapable of disclosing the true nature of the case. I would go to the extent of saying that where pleadings are ambiguous or are lacking in details the Deputy Commissioner may in his, discretion order amendment.
7. Now the question that arises for adjudication is as to whether the Deputy Commissioner should examine the case with a view to find out if a legally referable case existed or not before referring it to the Tribunal. My answer to the question is in affirmative. It is for the reason that only such disputes which are covered by the meanings assigned to the term herein that can be referred for decision and not all disputes. Accordingly the Deputy Commissioner shall be bound to determine if the dispute falls within the above category or not. Certainly the Legislature in its wisdom cannot require the Courts to waste their precious time in adjudicating such cases tl) I L R 1946 Bom. 444 (2)
49 LJQB 447 ' which were basically frivolous. The learned counsel for the respondent No, 1 pointed out that as there was no specific provision in the Ordinance like Kalat Procedure Code to require the filitg of the written statement and framing of issues therefore the Deputy Commissioner will not be in a pcsition to find out if a determinable dispute existed between the parties or not. In this regard I may refer to the words occurring in section 5 of the Ordinance that is "............Refer the dispute to the Tribunal for finding on such matters or issues as may be specified in the order". These words are of great significance and no other meaning can be assigned to them except that the Legislature desired that Deputy Commissioner should examine the case minutely and specify in his order of reference with clarity and in sufficient detail the points of law and facts at which the parties were at variance and which required adjudication. Since it is not possible to ascertain such points without requiring the contesting party or parties to file written statement, therefore the Deputy Commissioner should ask the opposite side to file written statement and then frame the issues for findings by the Tribunal. In case it is not done the Tribunal may be misled and the proceedings may prolong by repeated references which certainly would be opposed to the objects of the Ordinance which is promulgated with a view to ensure inexpensive and speedy justice.
8. Now the only other question which requires examination Is as to what should be the scope and extent of scrutinizing tee case at pre-reference stage by the Deputy Commissioner. It has already been discussed above that only the disputes which prima facie disclose a legally determinable claim can be referred to the Tribunal, so, the Deputy Commissioner should examine this aspect of the case also besides seeing if the cause of aciion had arisen within his jurisdiction, and the case was not tribal under the provision of Muslim Family Laws Ordinance or the Conciliation Courts Ordinarce before making reference to the Tribunal If the plaint shows that the claim is based on a wagering contract or on a contract which cannot be enforced for the reason of its being immoral or opposed to public policy he should dismiss it summarily. He should also see that the plaint is properly drafted disclosing a prima facie case i,e, a legally determinable dispute and if not, he should order its amendment. However, he should not determine those questions at pre-reference stage which emanate from the pleadings of the parties i,e, asserted by one party and contradicted by the other party as that is the exclusive function of the Tribunal. Such question are to be put into issues and referred to the Tribunal as these are the disputes of fact or disputes of law which constitute the subject-matter of the suit. In short, he should confine himself to the preliminary and basic matters which may help him in finding out as to whether a legally enforceable claim existed or not and if so whether the form of the suit was proper or the suit was likely to be defeated by reasons of its being basically framed in at erroneous manner, such as a suit by a minor or against a minor or person of unsound mind, etc. ' In the instant case the objection is that the Deputy Commissioner" should have seen as to whether the plaint disclosed that "raisin" were made! In accordance with law, the respondent No, l's claim over the property was preferential as against the petitioner and that the entire property purchased by the petitioner was claimed or not. These things do not forma part of preliminaries as they constitute real controversy between the parties and upon their decision depends the result of the case. Such points should be put into issues and referred to the Tribunal for decision. The learned A.- G. Who appeared on Court notice pointed out that the case tad already been sent to the Tribunal for decision and it would not be possible to comply with these directions. The reference of the case to the Tribunal makes a difference. The directions contained in this judgment can, still be complied with.
' For the reasons given above I do not find any substance in this petition which is hereby dismissed with no order as to costs.