' This is a Second Appeal under section 160 of the Civil Procedure Code filed by the propositus of the present appellants (who died during the pendency of the appeal) against the appellate decree dated 3rd of January 1967, of the learned Additional District Judge, Rawalpindi.
' The propositus of the appellants (hereinafter called the appellant) was a displaced person from Amritsar District (India) who occupied House No. H/119, in Arya Mohallah, Rawalpindi. On 9th of April, 1959, he filed NCH Form for its transfer. On 23rd of February, 1960, he entered into an Agreement of Association (Exh. P. 1) with the respondent. According to the Deed of Association, the rights and interests of the appellant were surrendered in favour of the respondent and it was stated thereunder that he would have a right to reside in the house for a period of three years. This Deed of Association was accepted by the Deputy Settlement commissioner on 29th of June, 1960. On 4th of July, 1960, Appendix IX was issues, and on 8th of July 19t0, P. T.
0. Was given to the defendant respondent.
2. On 23rd of December, 1964, the appellant filed a suit for a declaration and permanent injunction in which he had prayed that he is entitled to the transfer of the house, that the P. T.
0. Obtained by the defendant was a result of misrepresentation and fraud and that the Deed of Association was without consideration and against public policy and by way of permanent injunction to claim that the respondent be restrained from claiming the ownership of the property and from evicting the appellant from the house. Paragraph 1 of the plaint describes the property and the right of the appellant thereunder. Paragraphs 2 and 3 of the plaint are to the following effect :- "2. That before Appendix IX was issued to the plaintiff, the defendant approached him for association and thereby transfer of his rights in favour of the defendant, and, promised to pay Rs.
10,000 as the consideration money besides tee right to stay in the said property for a period of 3 years from the date of issuance of in T.
0. To the defendant, without payment of any rent by the plaintiff. It was mutually agreed that after the issuance of Appendix IX to the plaintiff this agreement of association will be filed in the Court of the Deputy Settlement and Rehabilitation Commissioner, Rawalpindi, for needful action,
3. Teat the plaintiff was duped to believe the good intentions of the defendant and in good faith signed an agreement in favour of the defendant and took a solemn verbal affirmation from the defendant that he will honour his commitments and will not try to obtain the transfer of the suit property in his favour without first paying the consideration money after the Appendix IX has been issued and delivered to the plaintiff. The defendant has by misrepresentation and fraud obtained the Provisional Transfer of the suit property in his favour."
3. The above paragraphs are the only material paragraphs for the' purposes of determining whether the civil Court has the jurisdiction to take season of the matter. On the basis of the pleadings of the parties, the learned Civil Judge framed eight issues which are as follows :-
(1) Whether this Court has no jurisdiction to try this suit ? 0. P. D.
(2) Whether the suit is not maintainable in its present form ? 0. P. D
(3) Whether the plaintiff is estopped from bringing this suit ? 0. P. D.
(4) Whether the P. T.
0. Of the suit house obtained by the defendant is based on fraud and misrepresentation ? 0, P. P.
(5) Whether the deed of association dated 23-2-1960 was for consideration ? 0. P. D.
(6) Whether the association deed dated :3-2-1960 was against public policy and is based on misrepresentation and fraud ? 0. P. P.
(7) Whether the association deed dated 23-2-1960 is void and inoperative ? 0. P. P.
(8) Relief.
Issue No. 6 was decided against the appellant. The findings of the learned Civil Judge on all other issues were in favour of the appellant. His suit was decreed except to the extent of restraining the respondent from interfering with his possession since he had been dispossessed pendente lite. The respondent filed an appeal before the learned District Judge, Rawalpindi, which was heard and disposed of by the Additional District Judge. The learned Additional L istrict Judge per decree dated 3rd of January, 1967, accepted the appeal on the solitary ground that in the circumstances of the case the civil Court had no jurisdiction to entertain the suit. Reliance was placed on Mst. Zainab Bibi v. Mst. Raji (1)-
4. Ch. Hamidud Din, the learned counsel for the appellant has vehemently raised before me the following contentions :-
(I) That whenever the allegations of fraud or misrepresentation are made or absence of consideration is alleged. The ouster of jurisdiction container:, in sections 22 and 25 of the Displaced persons (Compensation and Rehabilitation) Act, 1958, is not available against the jurisdiction of the civil Court, and
(ii) that whenever a decision has been given contrary to law, non obstante the above provisions, the civil Courts have the jurisdiction.
' Reliance has been placed, inter alia, on an unreported case (S. A.
0. No. 178/ 65), decided on 24th of May, 190, by Mr. Justice Muhammad Akram of this Honble Court (as his Lordship then was). The ratio decidendi of this case is that when the allegation in the plaint is that the order passed by the Settlement Authorities is mats fide, illegal, void, ultra vires, then the jurisdiction of the civil Court is not ousted. The allegation of fraud etc. May be inartistic, but the requirement of rule 4 of Order of the C. P. C. Would be satisfied if all the particulars of fraud, misrepresention etc. Were given in the pleadings with dates and items, if necessary. Rule 4 of Order VI of the C. P. C. Is as follows "In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
(1) PLD 190 SC 229 ' It has been laid down in Bal Gangadhar Tilak and others v. Shriniras Pandit and others (1) that - "In pleadings general allegations, however strong may be the words in which they are stated are insufficient even to amount to an averment of fraud of which any Court ought to take notice."
5. In the present case, the only averments of facts made in the plaint are that the respondent had promised to pay Rs. 10,000 besides a free stay in the property for a period of three years (presumably as a consideration for entering into the Agreement of Association), and that the appellant was duped by the respondent into believing that he will honour his word. (Incidentally, this issue regarding promise of Rs. 10,000 by the respondent to the appellant has been decided against him (appellant) (that the respondent obtained Appendix IX and P. T. 0 without paying the aforesaid amount (Rs. 10,000) to the appellant, has not been alleged in the plaint).
6 In the face of the averments in the plaint, it cannot be said that the Agreement of Association was without consideration. Non-payment of consideration is not the same thing as the absence of consideration. If a part' to a contract does not fulfil his obligation under the contract, the aggrieved party was a right to file a suit for damages for the breach of contract. The appellant in his plaint has asserted the payment of Rs. 10,01)0 and three years rent-free residence was promised to him by the respondent But, in the plaint be did not allege non-payment or denial of rent-free residence by the respondent Nor has the appellant alleged any grievance against any of the functionaries under the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
7. Moreover, for the purposes of Agreement of Association, payment of consideration to a party to the agreement is irrelevant for the purposes of Settlement Laws. It is not the sine qua non for the validity of an Agreement of Association that a consideration thereunder must be paid to the party surrendering his rights in favour of a claimant. Principles laid down in the Contract Act, 1872, are to be read subject to the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the Schemes made thereunder. Generalia specialibus non derogant.
8. Next it has been contended by the learned counsel that when a Special Tribunal decides not in accordance with law, or erroneously applies a provision of law under which it is functioning, the civil Courts have a corrective jurisdiction. Reliance has been placed on Secretary of State v. Mask & Co.
(2), Muhammad Tufail v. Abdul Ghafoor (3), Inayatullah v. M. a. Khan Plc. (4) and Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (5).
9. I am afraid, none of the above-mentioned decisions assist the contention of the learned counsel.
No doubt, the superior Courts in this country, by the exercise of constitutional jurisdiction, have a corrective Jurisdiction over the irregularity committed by the authorities subordinate to them. An the exercise of constitutional jurisdiction the ouster contained in sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act is not available. Just because by the exercise of constitutional
(1) AIR 1915 P C 7 (2) A R 1940 P C 105
(3) PLD 1958 SC (Pak.) 201 (4) P L 1) 1964 SC 126
(5) PLD 1965 SC 698 jurisdiction the superior Courts of this country can correct the error committed by the various administrative or quasi-judicial tribunals, does not mean that such matters can also be determined in this manner by ordinary civil Courts acting under section 9 of the C. P, C. If all the errors committed by the Settlement Authorities were subject to correction by toe ordinary civil Courts then there would be n significance in placing sections 22 and 25 into the body of the Displaced Persons (Compensation and Rehabilitation) Acre These sections are as follows : -- "22. Save as otherwise expressly provided in this Act, every order made by any officer appointed under this Act shall be final and shall not be questioned in any Court."
"25. Save as otherwise provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Central Government or an Officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken to be taken in exercise of any power conferred by or under this Act."
The obvious purpose of the above provisions is that the Settlement Authorities being tribunal of special jurisdiction, have the exclusive authority to determin matters within their ambit. If in the exercise thereof any error is committed (it may be misapplication of provisions of the Act or Rules) it can be corrected only by the hierarchy provided by the Displaced Persons (Compensation and Rehabilitation) Act or through constitutional jurisdiction of the Courts of this country. The jurisdiction of the civil Court can b invited only in case of commission of fraud or violation of some fund mental norm which makes the decision of the Settlement Authorities coram non judiee.
10. None of the above circumstances are present in this case. Certain discussions have been made in the judgment of the learned Civil Judge whose purport is to show that some irregularities have not been mentioned in the plaint nor is the commission of such irregularities enough to invoke the jurisdiction of the civil Courts, To allow this, would totally defeat the purpose of sections 22 and 25 of the Act.
11. Moreover, it appears from the judgment of the learned trial Court that the appellant had tried his level best before the Settlement Authorities but he did not succeed. Thereafter, he brought the present suit.
12. For the aforesaid reasons, I find no merits in this appeal which is, hereby, dismissed. In the circumstances of the case, there will be no order as to costs.