This civil revision has arisen out of an order, dated 30-9-1996 passed be the learned Additional District Judge, D.I. Khan, whereby on acceptance of the appeal of respondent No. 1. Has set aside the order, dated 12-9-1995 of the learned Senior Civil Judge. D.I. Khan and held that the Civil Court had no jurisdiction to entertain the civil suit filed by the plaintiff/petitioner and was accordingly dismissed.
2. The short background of the case is that the disputed land originally belonged to and was under the occupation of the Land Commission, which was allegedly sold to Gul Baz, son of Jehan, the predecessor-in-interest of petitioners and defendants Nos.7 to 10, for a sum of Rs.2,233.70 on 17-9- 1960. The sale amount was to be paid in instalments which were paid up by the predecessor of the petitioners and respondents Nos.7 to 10 after Rabi, 1970, while the balance amount was stated to be remitted to the said Gul Baz, and as such it was claimed that Gul Baz became owner of the suit land.
3 It-was, however, the grievance of the plaintiff/petitioner that even after the payment and subsequent remission of the amount, the suit land was not transferred in the name of Gul Baz, and contrary to the proprietary rights of Gul Baz, he was recorded as a temporary owner (DW ) in the Revenue Record. Reference was made to a copy of Record of Rights pertaining to ,the years 1986-
87. Owing to the said alleged wrong entry. The suit land was considered as "vacant" and was, thus, wrongly alienated to respondent No.1 through Mutation No. 806 attested on 8-7-1989. Thus, according to the plaintiff, the declaration of land as "vacant" and its transfer to respondent No.1 was illegal, without lawful authority and, as such, ineffective upon the rights of the Plaintiff and was accordingly challenged through a Civil Suit No.67/1 of 1995, on the grounds detail fully incorporated in the plaint filed in the Court of Senior Civil Judge, D .I. Khan-
4. Respondent No.1, Umardraz, contested the suit by filing his written statement, wherein besides various factual and legal objections, the objection that the Civil Court had no jurisdiction to entertain the suit was also pleaded. The trial Court, vide order-sheet No.7, dated 21-6-1995, framed the following preliminary issue:-- "'Whether the Court has got jurisdiction to entertain the present suit""
By his order. Dated 12-9-1995, the learned Senior Civil Judge held that the Civil Court had got. The jurisdiction to entertain the present suit.
5. The respondent being aggrieved by the said order, challenged it by way of-appeal before the Additional District Judge, D.I. Khan. The appeal was allowed and the order dated 12-9-1995 of the learned Senior Civil Judge was set aside, by holding that Civil Curt had no jurisdiction to entertain the present suit and, consequently, the suit was dismissed leaving the parties to bear their own costs. Hence the instant civil revision.
6. Learned counsel for the petitioner submits as under:--
(i) That under section 9 of the Civil Procedure Code, 1908, the Civil Court is equipped with the powers to try all the civil suits and this cast~ also being for the determination of civil rights, falls within the jurisdiction of Civil Court;
(ii) that in view of seeking a variety of declarations, the matter cannot be taken out of jurisdictional ambit of Civil Court; (i.e)that for the purpose of assuming jurisdiction, only averments in the plaint are to be looked into; (iv)that vide letter No. 1109/ML/20-Kulachi, dated 29-8-1994 written by A.C./Assistant Land Commissioner to the Deputy Land Commissioner, D.I. Khan, wherein it is stated in para. C 'that as the matter belonged to the question of rights, it should be tried in the Civil Court', therefore, the Civil Court is vested with the jurisdiction, and; (v)Lastly, that in the case of lack of jurisdiction, the plaint should have been returned to the plaintiff to enable him to pursue his interest in any other available forum.
7. On the contrary, learned counsel for the respondents has vehemently defended the impugned order of the learned Additional District Judge for the reasons stated therein and submitted that in view of the judgments reported 199^. SCMR 1635 and PLD 1993 Pesh.
60. The learned lower Appellate Court was correct in holding that the Civil Court had no jurisdiction to entertain the present suit. He has also referred to paragraph 26 of Martial Law Regulation No. 115 which is a barring paragraph and clearly ousts the jurisdiction of the Civil Courts.
8. I have set my anxious thought on the arguments advanced by both the` learned counsel for the parties and with their valuable assistance have gone through the record and the law cited at the Bar. I would like to take the points raised by the learned counsel for the petitioner in their individuality.
9. The first point of the petitioner is that section 9 of the C.P.C. Is of a very comprehensive nature and it vests the Civil Court with the powers to try all suits of civil nature. A bare reading of this section shows that Courts have the power and jurisdiction to try all civil suits but "excepting suits of which their cognizance is either expressly or impliedly barred. Thus, the excepting part of this section is significant in order to determine the question of jurisdiction and, therefore, section 9 of the C.P.C. Is relatable directly to paragraph 26 of the Martial Law Regulation No. 115, which is a barring paragraph and is reproduced below:-- Paragraph 26. Bar of Jurisdiction.--- (1) No provision of this Regulation or of any rules or orders made thereunder shall be called in question in an) Court, including the High Court and the Supreme Court, or before and authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine.
(2)No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the commission or before any Officer exercising any power or discharging any function under this Regulation or the Rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such Officer. "
10. It is now well-settled proposition of law that where a Special Tribunal out of Ordinary Course is appointed by a law to determine questions as to rights ~, which are the creation of that Act, then except so far as otherwise expressly provided or necessarily implied, that Tribunal's jurisdiction to determine those questions is exclusive. Section 9 of C.P.C. Is a sweeping section, but has itself recognized the exception of those suits of which their cognizance is either expressly or impliedly barred. This brings me to the barring provision of paragraph No.26 of M.L.R. No.115, which in an unmistakable language has ousted the jurisdiction of any Court including the High Court and Supreme Court to call in question the proceedings of Regulation or any Rules or orders" made thereunder. No Court or Authority shall have jurisdiction in respect of am, matter, which the Commission is empowered to determine.
11 In the instant case, the land in dispute was transferred to respondent e No. 1, vide Mutation No.806 attested on 8-7-1989, by the Land Commission, as the same was found and declared as vacant land. This transfer of land by way of donation by the Land Commission was an act in exercise of powers conferred by Martial Law Regulation No. 115 constituted under Paragraph 4 thereof, which was equipped with all the powers necessary for the implementation of this Regulation. Thus, the grant of land which vested in Government under the Regulation is not an act which could be described as without jurisdiction, without lawful authority or coram non justice.
12 If, however, due to any fallacy of facts, misrepresentation or l misreading of any document or due to any other vitiating factor, a wrong or unwarranted order was passed. The same could be corrected by the same authority which passed the Previous order, or by upper hierarchy under the same law in view of section 21 of the General Clauses Act, 1897 (Act No.X of 1897), which reads as under;-- Power to make, to include power to add to amend. Vary or rescind orddrs. Rules or bye-laws.--- Where by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to`, amend, vary or rescined any notifications, orders, rules or bye-laws so issued. " and, in this way, any wrong or mischief can be undone by the same authority.
13. The second point of the learned counsel for petitioner is that in view of the plurality of declarations, the Civil Court had the jurisdiction to entertain the suit, This contention has no force, as the basic grievances are emanating from the impugned transfer of land which was made by the Commission and the same Commission, as discussed above, can be approached for the relief, if the claim is genuine.
14. Point No. 3 of the petitioner is also, in context. Of the instant case, devoid of force. The plaint itself shows that the mutation challenged was resting upon the order passed by the Land Commission. It is also significant that there existed no record to auction in the name of Gul Baz, son of Jehan, the predecessor-in-interest of petitioner as claimed by him. No such record/document was even produced by him before the Commission in support of his application submitted to Deputy Land Commission, D.I. Khan, (respondent No.5 herein).
15. Fourthly, the learned counsel for petitioner. Relying on letter No. 1109/ML/20-Kulachi, dated 29-8- 1994, written h; the Assistant Commissioner/Assistant Land Commissioner to Deputy Land Commissioner, D.I. Khan in para. "C" whereof it is stated that "as the matter belonged to the question of right, it should he tried in the Civil Court". In this regard, it is a settled position of law that where a Tribunal lacks jurisdiction, consent of parties cannot confer. Such a jurisdiction on it, and on the other hand, 'if a Tribunal has D the jurisdiction, then it cannot be contracted out or ousted by consent of parties. Reliance is placed on PLD 1987 Lah. 316. Thus, it- follows that the above referred letter could neither confer jurisdiction on the Civil Court in view of the clear-cut bar contained in paragraph No.26 of Martial Law Regulation No. 115 nor could it divest the Commission of its jurisdiction, which is exclusively vested in it. For the applicability of paragraph No.26 of Martial Law Regulation No. 115 and exclusion of jurisdiction of Civil Court, I find full support from PLD 1993 Pesh.
60.
16. In view of the above discussion, I am constrained to hold that the--judgment of the learned Additional District Judge, D.I. Khan, dated 30-9-1996 does not suffer from any infirmity which is upheld and consequently, this civil revision fails and is dismissed, leaving the parties to bear their own costs.
17. However, in view of the last submission made, by the learned counsel for the petitioner that in case of lack of jurisdiction, the plaint should have been returned to the plaintiff to enable him to pursue his interest before the available forum. I, therefore, order that the plaint be returned to him so that he may, if so wishes, avail the remedy where available.