1. ' ALI MUHAMMAD BALOCH, J.---This is a High Court Appeal challenging an order passed by a learned Single Judge in Chamber, on 10-11-1997, whereby the objections raised by the defendants in the suit, on the point of maintainability of the suit were overruled, and the office was directed to fix the suit for further proceedings.
2. ' The facts necessary for decision of this appeal are to the effect that M/s. Saleem Impex, a sole Proprietorship concern had filed Suit No,681 of 1995 in the High Court against the Central Board of Revenue. The Collector of Customs, and the Trustee of Port of Karachi, with the following prayer:---
(1) That the plaintiff is entitled to a declaration that he has imported Aluminium waste and scrap and as per invoice and bill of entry, for consumption, bearing IGM-1251, dated 15-8-1995.
(ii) Further that the plaintiffs are only liable to pay Customs Duty under Head 7602-0000, as Aluminium waste and scrap.
(iii) That the defendants are further liable to be directed to release the goods covered by the said bill of Entry No,7602-0000 on the payment of Customs Duty on the unit price of U.S. $ 150 per metric ton for the entire consignment of 20 metric tons.
(iv) That the defendant No,3, (K.P.T.) be directed not to charge demurrage as the goods have been withheld by the Customs Authorities for no fault of plaintiff.
(v) Restrain the defendants from treating the consignment of plaintiff being Aluminium waste and scrap, under any other classification except 7602-0000.
3. ' In the written statement filed by the defendants/appellants, preliminary objections were raised to the effect that the plaintiffs did not enjoy any status as per section 42 of the Specific Relief Act, hence the suit filed by the plaintiff was not maintainable under law. The second preliminary objection was that suit was not maintainable under provisions of section 217 of Customs Act as well as under provisions of section 87 of K.P.T. Act.
4. ' In respect of the pleas taken by the plaintiffs, the defendants had also denied the factual aspects as pleaded by the plaintiffs. It was pleaded that initial declaration of the bill of entry made by the plaintiffs was that the goods were "Aluminium waste" and "Scrap". On the physical examination of the goods it was found that the plaintiffs had imported 100% auto parts as the examination had revealed the goods to contain "Car doors with glass, Engine Axle, Geer-box, bumper, steering etc." It was further pleaded that such goods have even numbers on the auto mobile parts were visible. It was pleaded that import of old and used serviceable auto parts were not permissible under import policy order. It was pleaded that the plaintiffs had requested for summary adjudication vide their written application and thereby had admitted the violation of law by them. The examination report of the goods was within the knowledge of the plaintiffs. It was also pleaded that valuation was not finalised till the filing of the written statement, and the expected assessment at a higher rate than the value of the new auto parts was not correct as the valuation was yet to ber finalised. It was pleaded that the plaintiff had himself requested for summary adjudication under section 180 of the Customs Act, 1969 for contravention of sections 16 and 32 of the Customs Act, 1969, therefore, the plaintiffs had no case apart from the fact that the suit itself was not maintainable under law.
5. ' In the second written statement filed by the Karachi Port Trust, it was contended that notice under section 87 of the Karachi Port Trust, Act, 1886 was not served hence the suit was not maintainable against the Karachi Port Trust as that mandatory requirement was not fulfilled. It was also pleaded that the plaintiffs had filed C.P. No,D-529 of 1995 in which the plaintiffs were directed to deposit the amount of demurrage charges with the Nazir of the Court, and it was pleaded that demurrage charges were payable by the plaintiffs as the same were legitimate dues of Karachi Port Trust.
6. While deciding the preliminary objections, learned Judge in the Chamber came to the conclusion that the stage for deciding the preliminary objections was premature as the alleged controversies were matter of evidence. We have heard the learned counsel for the parties in detail and have also examined the impugned order and the other relevant papers.
7. ' The main point for our determination is whether under the circumstances of this case, the Civil Court has jurisdiction to entertain the present suit, and whether the learned Single Judge was justified in holding that since the controversies between the parties, required evidence for their solution, the Civil Court had jurisdiction to proceed further. What we feel is that the purpose of order of the learned Single Judge was to the effect that the parties should lead evidence on the points of controversy, specially the points requiring decision for the purpose of the jurisdiction of the Civil Court, then the Civil Court shall again examine the case to find out whether it has the jurisdiction to resolve the dispute between the parties.
8. ' Before us the learned counsel for the appellant relied upon the provisions of sections 217(1) and 2Y'(2) of the Customs Act, 1969, which read as under:--- "Section 217(1) of Customs Mt, 1969.
9. Protection of action taken under the Act.---(1) No suit, prosecution or other legal proceeding shall lie against the (Federal Government) or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the Rules.
(2) No suit shall be brought in any Civil Court to set aside or modify any order passed, any assessm ent made, any tax levied, any penalty imposed or collection of any tax made under this Act."
10. ' The above provisions of law was added to the Customs Act in the year 1992, by the. Finance Act, 1992 (VII of 1992). This addition in the laws, in the year 1992 clearly lays down the common law rule that where the Government or their servants do or intend to do anything under which they are authorised to act, shall not be liable civilly or criminally.
11. ' Further, it is pertinent to note that the protection provided by this provision is conditional upon their having acted in good faith. A mala fide act is not protected under this section.
12. ' In order to adjudge applicability of the above provisions we have to took into the pleadings of the parties and the material placed by them before the Court, and find out whether there is prima facie proof of the fact that the functionaries of the Customs Department had not acted in good faith and that, therefore, their acts prima facie are to be taken to be mala fide, which is turn will make provisions of section 217(1)(2) of Customs Act, not applicable to this case, and will, thus, not affect the jurisdiction of the Civil Court in this case.
13. ' In paragraph No,9 of the plaint, the plaintiff has stated:---
9. That it is respectfully submitted that the fixar on of value of the scrap is not only arbitrarily but to harass the plaintiff without assigning any cogent reason the defendant No,2, has imposed 100% fine on the total consignment as per assessment by them. The defendants have completely ignored the fact that the consignment was purchased from Hong Kong where the old and used auto mobile parts are rendered unserviceable and have been declared 'Scrap' after the specified time of their use. The scrap consignments are exported from various countries to Pakistan under the nomenclature ' Scrap' ."
14. ' The learned counsel for the appellant while arguing this appeal laid much stress on the ground that action of the respondents is not bona fide and that they are bent upon to harm the business of the plaintiff by further ulterior motives, and, thus, the provisions of section 217(1) and (2)'of Customs Act do not apply in the present case. Apart from that the learned counsel has laid stress on provisions of section 9 of the Civil Procedure Code, and stated that the bar of jurisdiction is not express and specific in this case, therefore, the Civil Court has jurisdiction.
15. Reverting to the impugned order we find that the learned Judge in Chamber has taken pains to discuss the relevant law on the point and has come to the conclusion that the points relevant to find out whether Civil Court has jurisdiction or not to adjudicate this case, are to be proved by evidence for which the parties have to be given a chance to lead evidence. For the above reasons we do not find any legal flaw in the impugned order and leave the original Court to record evidence of the parties on the point of jurisdiction of the Court in the first instance and give a finding based on such evidence whether the Court has jurisdiction. In case the finding is in positive, the Court must decide the suit expeditiously on merits within a period of six months from the date of this order.
16. ' With these observations the appeal, which was heard for final disposal with the consent of parties, is dismissed along with the pending application.