KARAMAT NAZIR BHANDARI, J. -- On 14.6.1974, the appellants brought a suit for permanent injunction on the basis of averments that the appellants and respondents Nos. 2 and 3 were jointly allotted lot No. 113 measuring 1200 kanals under Tube-well Scheme on 12.9.1953 and the possession of the same was delivered on 13.9.1953. It was further asserted that respondent No. 1 received advance of Rs. 13050/- which includes a sum of Rs. 100/- for trial boring. It was pleaded that because the respondent did not fulfil its part of the agreement regarding trial boring, the respondent was not entitled to cancel the lot or to interfere in the possession of the appellants. It was stated that respondents Nos. 2 and 3 were not joining the suit as plaintiffs and, therefore, they are being impleaded as proforma. The decree for permanent injunction was prayed for.
2. Respondent No. 1-defendant contested the suit. Out of the pleadings as many as four issues were framed which were duly tried. Vide judgment dated 8.3.1975, the Trial Court decreed the suit with the condition that they shall deposit the remaining instalments within four months from the date of this order otherwise their suit shall stand dismissed with costs but no order is made in respect of the costs of the suit". The defendant appealed and vide judgment dated 26.9.1975, the same was allowed and the judgment and decree of the Trial Court was set aside and the suit was dismissed.
The Appellate Court supported the judgment by relying on the provisions of Section 74-A of the Thal Development Act, 1949, which was inserted through Ordinance XIX of 1975, on 6.6.1975.
The Ordinance XIX of 1975 was later on converted into Act XLVI of 1975 known as Thal Development (Punjab Amendment) Act, 1975. By virtue of Section 74-A ibid, the jurisdiction of the Civil Court was barred in matter which the Collector was empowered by the Thal Development Act, 1949, to dispose of. The plaintiffs have come up in Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
3. By relying on Barkat All v. Administrator, Thal Development, Bhakkar (PLD 1978 Lahore 867), learned counsel for the appellants has contended that Section 74-A ibid cannot have retrospective effect so as to undo the vested right accruing in favour of the appellants under the decree of the Trial Court. Learned Assistant Advocate General, on the other hand, has supported the view of the Appellate Court and he has emphasized that according to the language employed under Section 74-A of the Act, the jurisdiction of the Civil Court had been taken away with effect from 29.7.1949, when the Act itself was enforced.
4. The perusal of the judgment in Barkat Ali's case (supra) shows that the precise question was in depth examined by a learned Single Bench of this Court and almost in similar circumstances the answer recorded was that the provisions of Section 74-A cannot take away the rights vesting under a decree as the law-maker has not destroyed such rights in view of the language used in Section 74-A. The learned Judge further held that ouster of jurisdiction under Section 74-A is not complete and the Civil Court retains the jurisdiction to examine whether the action complained against falls within the boundaries of the law, viz, Thal Development Act, 1949. I am in complete and respectful agreement of the view taken in the above judgment and following the same, I hold that the dismissal of suit by the learned District Judge on the basis of Section 74-A of the Thal Development Act, 1975, is illegal.
5. Consequently, this appeal is alleged and the appellate judgment and decree is set aside with the result that appeal preferred by respondent No. 1 will be deemed to be pending and will now be disposed of on merits, in accordance with law particularly in the light of the guidelines provided in Barkat Ali's case (supra). Parties are left to bear their own costs.
6. Since it is an old matter, appeal will be decided within 10 weeks.