' On 11-8-1998, learned District Judge, Karachi West granted interim injunction by allowing an application under Order XXXIX, Rules 1 and 2, C.P.C. In a proceeding arising out of section 11 of the Sindh Waqf Properties Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979). This appeal has been filed under Order XLIII, Rule 1, C.P.C. Against the said order/decision.
2. Pre-admission notices were issued to the respondents and pursuant to the same all of them have appeared and made respective submissions except respondent No,10 who engaged Mr. M.S. Khatri, Advocate who failed to appear today. On 12-1-1999, notice was also issued to the Advocate- General, Sindh to assist the Court on the question of law involved in the instant appeal. I have heard Mr. Shakeel Ahmed, Advocate for the appellants and M/s. Mehar Hussain Mesawa and A. De Cruz, Advocates for the respondents. Mr. Muhammad Ismail Memon has also made his valuable Contribution on behalf of the Advocate-General, Sindh.
3. Mr. Mehar Hussain Mesawa has raised preliminary objection on the maintainability of this appeal by referring to section 12 of the Ordinance, 1979 which provides appeal against a decision of the District Court passed under section 11(1) of the Ordinance, 1979. It was contended that an appeal will lie only against a final decision or order of the District Court and the impugned order being interlocutory/interim could not be called in question by way of appeal. In reply to this objection, Mr. Shakeel Ahmed has suggested that there is no bar in converting one proceeding into another one and that the instant proceedings may be treated as civil revision application under section 115, C.P.C. As the impugned order has been passed without jurisdiction.
4. Appeal against the order of the District Court has been provided under section 12 of the Ordinance, 1979 to the High Court within a period of 60 days. This appeal is to be preferred by an aggrieved person. There is no scope of revision in the entire scheme of the Ordinance, 1979. Nor there is any specific prohibition from invoking jurisdiction of this Court under section 115. C.P.C. The High Courts arc exercising even suo motu revisional powers where it is found that the order passed by the subordinate Courts was contrary to the statutory provision and/or without jurisdiction. In such circumstances, the Constitutional provision of superintendence and control of the High Courts was also invoked to correct jurisdictional error of the subordinate Courts. In Mst. Farida Parwin v.
Qadeeruddin Ahmad Siddiqi PLD 1971 Karachi 118 at 127, it was held. Inter alia, by a learned Single Judge of this Court, Muhammad Haleem. J. (as his Lordship then was) that the words 'supervise and control' used in Article 203 of the Constitution of Pakistan, 1962 empower the High Court to exercise judicial control over the decisions of the subordinate Courts. The same view was followed by another Judge of this Court. Tanzil-ur-Rehman, J. (as he then was) in the case of Morio Goth Welfare Association v. Muhammad Bachal and 6 others (1985 CLC 1680 at 1691) and it was held that under Article 203 of the Constitution of Pakistan, 1973, the High' Court is empowered to exercise judicial control over the decisions of subordinate Courts for c6rrection of exercise of jurisdiction or non-compliance of any statutory provisions of law. In recent past a Division Bench of this Court comprising Mitklitar Ahmed Junejo and Nasir Aslam Zahid, JJ. (as their lordships then were) in a matter arising out of a criminal offence held in the case of M. Osman v. Tajamul Hussain and another PLD 1992 Karachi 173 as follows:-- "There can be no cavil with the contention raised by the learned counsel that this Court has to supervise and control all the Courts subordinate to it by virtue of Article 203 of the Constitution of Pakistan and there is no question of abdicating such powers by this Court. In the case of Jodhey and others v. State AIR 1952 Allahabad 788, cited by the learned counsel, it was held that the purpose of the Constitution-makers while enacting Article 227 of the Constitution of India (which corresponds to Article 203 of the Constitution of Pakistan) was to make the High Court responsible for the entire administration of justice and to vest in the High Court an unlimited reserve of judicial power which could be brought into play at any time that the High Court considered it necessary to draw upon the same. In the case of Shripatrao Dajisaheb Chatge and another v. The State of Maharashtra and another AIR 1977 Bombay 384 cited by the learned counsel, it was held that Article 227 of the Constitution of India is not merely procedural but confers a substantive right of action on a litigant to move the High Court."
5. In the instant case, as I am of the view that the impugned order is without jurisdiction. I do not see any error in exercising supervisory jurisdiction to correct this gross illegality even under section 115, C.P.C. I may refer here the case of Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496 at 506 where after reference to the case of Karamat Hussain and others v. Muhammad Zaman and others PLD 1987. SC 139, it was held. "the power conferred by section 115 of the Code of Civil Procedure is exceptional but a necessary power intended to secure effective exercise of High Court's superintending and visitorial powers and correction of jurisdictional errors or material irregularities in proceedings of the subordinate Courts. Such a power should not be inhibited by technicalities of procedure or entirely by the conduct of the parties." This view was reiterated by a Full Bench of Hon'ble Supreme Court in the case of Muhammad Aslam and another v. Munshi Muhammad Behram and another 1991 SCMR 1971. In that case the question before the Hon'ble Supreme Court was whether in the presence of section 39, C.P.C. Which provides for appeal. There was any scope for revisional jurisdiction. The answer of the Supreme Court was in affirmative.
6. There is another angle to look at this question. The word used in section 11 of the Ordinance, 1979 is 'decision' and not final order/decree. The word decision in reference to section 25-A of the Industrial Relations Ordinance, 1969 was interpreted by a Division Bench of this Court in Muhammad Ramzan v. Trustees of Port of Karachi 199Q CLC 1086. In that the reference, word decision' was defined to mean the act of deciding or settling a dispute or question by giving judgment; the act of making up one's mind; a judgment or conclusion reached or given. It was further held that an order disposing of an interlocutory matter cannot amount to a decision. The word decision used in section 20 of the Canal and Drainage Act, 1873 was defined by the Lahore High Court in the case of Bashir Ahmed v. Sardar Muhammad and others 1984 CLC 2158 as "a determination arrived at after consideration of facts, and, in legal context, law. 'Decision' can be regarded as the rejection of the application or its acceptance subject to the confirmation and modification by the Canal Officer." Reference was made to several dictionary meanings of the word 'decision'. This Court has also considered the phrase 'any decision or order' as used in section 203 of the Sindh Land Revenue Code in the case of Mehdi Shah v. Government of West Pakistan.
Lahore and another PLD 1969 Karachi 369. In that case it was held that the order through which fine was imposed, was appealable under section 11 of Sindh. Revenue Jurisdiction Act, 1876. In this regard, I would also like to refer Black's Law Dictionary, 6th Edition, 1990 where word 'decision' has been defined in the following manner:-- "Decision. A determination arrived at after consideration of facts, and, in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning.
It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character.
' A determination of a judicial or quasi judicial nature. Settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. The term is broad enough to cover both final judgments and interlocutory orders. And though sometimes limited to the sense of judgment, the term is at other times understood as meaning simply the first step leading to a judgment; or as an order for judgment. The word may also include various rulings, as well as orders, including agency and commission orders."
7. In view of the aforesaid discussion, I am of the considered view that where an interim order or any other interlocutory order which the District Court may have passed while dealing with a petition under section 11 of the Ordinance, 1979 which appears to be patently illegal or without jurisdiction or in excess of jurisdiction and which by virtue of culmination of a question of fact or of law has attained the status of a 'decision' may be called in question under section 12 in an appeal before this Court. This being the situation, the preliminary objection of Mr. Mehar Hussain Mesawa stands overruled.
8. Adverting to the merits of the case, Mr. Shakeel Ahmed, Advocate for the appellant has placed much reliance on section 13 of the Ordinance, 1979 and contends that pending disposal of a petition under section 11 before the District Court, it has no jurisdiction to issue a temporary injunction or to pass restraining order against the order of the Chief Administrator from taking over or assuming the administration, control, management and maintenance of the property in respect of which a notification has been issued. He has placed reliance on the case Syed Muhammad Ali Shah Bukhari v. The Chief Administrator of Auqaf, Punjab, Lahore and 3 others 1972 SCMR 297. The said case was in respect of section 9 of the West Pakistan Waqf Properties Ordinance, 1961 which is parallel to section 13 of the Ordinance, 1979. Mr. A. De Cruz has supported the case of the appellants. In order to appreciate the respective contentions of all the parties it would be advantageous to reproduce section 13 of Sindh Waqf Properties Ordinance, 1979 which reads as follows:-- "13. District Court and High Court not to issue temporary injunction or order.--Notwithstanding anything to the contrary contained in any other enactment for the time being in force, the District Court or the High Court shall not, pending disposal of a petition filed under section 11 or an appeal filed under section 12 have the power to issue a temporary injunction or order restraining the Chief Administrator from taking over or assuming the administration, control, management and maintenance of property in respect of which a notification has been issued under section 7."
9. Mr. Mehar Hussain Mesawa has submitted that a Court which is competent to grant a final relief is also competent to grant interim relief in order to do complete justice. There is no cavil to this proposition. If any reference is needed, see Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242; Syed Sardar Shah Bukhari v. The Chief Justice and Judges of High Court of West Pakistan PLD 1965 SC 479; Government of Pakistan through Ministry of Finance v. M.I.
Cheema, Deputy Registrar Federal Shariat Court and others 1992 SCMR 1852 and Federation of Pakistan through Secretary Finance, Islamabad v. Abdul Rehman and others 1995 SCMR 6. I have also followed the same rule recently in the case of Philips Electrical Industries of Pakistan Ltd. v. The Ilnd Labour Court Karachi and others (Judgment dated 3rd May, 1999 in C.P. No,S-498/1998. But this is not the situation here. In the Ordinance, 1979, there is a specific bar which restrains the District Court as well as High Court from issuing a temporary injunction restraining the Chief Administrator from taking over the property pending decision of a petition filed under section 11 or 12 of the Ordinance, 1979, as the case may be. In presence of this bar the District Court or the High Court cannot issue a temporary injunction as it was done by the District Judge in the instant case. In this connection, Mr. Shakeel Ahmed has rightly referred to the case of Syed Muhammad Ali Shah Bukhari (supra) where while interpreting section 9 of the West Pakistan Waqf Properties Ordinance, 1961 (now repealed) which is paramateria to section 13 of the Ordinance, 1979, following rule was laid down by the Hon'ble Supreme Court:-- "... ...A study of the Ordinance on the whole, does yield the conclusion reached by the learned Judges that the Legislature has dispensed with the requirement of a show-cause notice before taking action under section 6. A comprehensive remedy has been provided by section 7 of the Ordinance by an application to the District Judge to challenge the validity of action taken. Even while providing that remedy, the Ordinance has ousted the jurisdiction of the District Judge and the High Court to issue injunction against the Chief Administrator, Auqaf, to restrain him from assuming control of the property as Waqf Property under section 6. This clearly demonstrates the intention of the law-giver that the assumption and control of the properties by the Chief Administrator, Auqaf, under the Ordinance, should continue to remain uninterrupted till the disposal of the question of title on merits by the civil Courts."
10. The above rule was reiterated by the Hon'ble Supreme Court in yet another case Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450 where again referring to section 9 of the West Pakistan Waqf Properties Ordinance, 1961, it was, inter alia, held that the said Ordinance has taken away right of the petitioner to interim relief and that such circumstances will not extend a right to invoke the writ jurisdiction of the High Courts.
Reference to the case of Usman Panjwani and another v. Government of Sindh and another 1996 CLC 311 by Mr. Mehar Hussain Mesawa would not improve the respondent's case as that rule was held in respect of bar contained in section 36 of Colonization of Government Lands Act, 1912.
Likewise the case of Syed Muhammad Siddique Shah and others v. Sh. Muhammad Afzal and others 1984 CLC 349 is also of no help to the case of respondents.
11. In a matter arising out of a dispute pertaining to Waqf Properties which comes before a District Court by way of petition under section 11 of the Ordinance, 1979 a Court established under that special law, i,e,, the Ordinance, 1979, is the Court of exclusive jurisdiction and the jurisdiction of all other Civil and Revenue Courts are ousted by virtue of section 21 of the Ordinance.
1979. It is to be seen that section 21(c) of the Ordinance, 1979 ousts the jurisdiction of Civil or Revenue Court from even issuing an injunction or any other order in relation to any proceedings before the Chief Administrator under the Ordinance or anything done by the Chief Administrator under the said Ordinance. Sections 13 and 21(c) if read together completely oust the jurisdiction of the Civil Court including that of the District Court and High Court to grant an interim injunction pending disposal of a petition under the provisions of the Ordinance, 1979. This discussion leads me to hold that the learned District Judge has acted beyond his jurisdiction while passing the impugned order.
12. As a result of the above discussion, this appeal is accepted and the impugned order is set aside.
The learned District Judge, Karachi West is directed to expeditiously proceed with the case and to dispose of the same within three months from the date of receipt of this order. Consequently, C.M.A.
No,5182 of 1998 has become infructuous and stands disposed of.