Find a Lawyer

Writ Petition No. 433 of 1963, decided on 14th December 1964.

(a) Conciliation Courts Ordinance (XLIV of 1961)

, Ss. 3 & 7(2) and Sch., Part II, Section B‑Interpretation‑Word "claim" in Section B, Part II of Schedule‑Indicates civil cases where claim is for money only‑Words "delivery of property" in S. 7(2) refer to movables‑Dispute regarding immovable property entailing examination of complicated questions of law and fact‑Conciliation Courts have no jurisdiction to settle such dispute.

(b) Constitution of Pakistan (1962),

Art. 98(2)(a)(ii)‑Other remedy (Revision to District Judge) not availed of‑Whether relief can be claimed under Art. 98.

Farid Ahmad and Md. Yahya for Petitioner.

Ahmed Sobhan for Respondents.

Date of hearing: 7th December 1964.

ABDUS SATTAR,. J.

‑The petitioner Hazi Fazal Karim Sikdar has obtained this rule on the respondents, namely, (1) Khuruskul Conciliation Court, represented by its Chairman and (2) Syed Md. Abdullah, to show cause why the proceedings taken and the order and judgment dated the 29th August 1962, passed by the Conciliation Court Khuruskul Union Council in case No. 5 of 1960, should not be declared to have been taken and passed without lawful authority and as such are of no legal effect.

The petitioner has alleged that respondent No. 2 Syed Md. Abdullah filed an application on the 26th March 1962, before the Chairman, Khuruskul Union Council alleging inter alia that as he was in need of money he approached the present petitioner and the petitioner agreed to lend money on condition that some landed properties would have to be given to him as security: The petitioner further pointed that as there were some legal difficulties the money would be advanced on Syed Md. Abdullah's executing some registered kobala deeds and Pattas in respect of the lands. It was, however, agreed verbally that the land would be returned to the respondent Nor. 2 on repayment of the loan. In pursuance of this contract the petitioner advanced a sutra of Rs. 1,900 and respondent No. 2 executed and registered documents‑two of which were sale deeds and the other a deed of lease. Respondent No. 2, thereafter, requested the present petitioner to accept the money advanced by him and to return the landed properties to the petitioner. ' Hence respondent No. 2 prayed that after taking account of the loan money with interest the Conciliation Court should pass an order on the present petitioner to return the landed properties covered by the three documents."

On receipt of the notice of the said application filed by respondent No. 2, it is said, the petitioner appeared before the Chairman of the Union Council who demanded his signature on some blank, papers and the petitioner being ignorant of the procedure of the Conciliation Court gave some signatures on some blank papers. Thereafter it appears the Chairman, Conciliation Court by his judgment and order dated the 17^th September 1962, held that the said registered documents were created for tile purpose of the loan transaction and he directed the respondent No. 2 to appear before the Court with Rs. 1,900 and the present petitioner to appear to receive the said amount. It was further directed that on the petitioner's failing to receive the amount and not re-conveying the landed properties the respon dent would be entitled to get back the land in execution of the decree passed by the Conciliation Court. The petitioner has further stated that he never nominated any member as his repre sentative in the said Conciliation case and he also protested orally that the Conciliation Court had no jurisdiction to pass a decree in the case. The petitioner's case is that he acquired the disputed lands from the respondent No. 2 who executed the three documents on receipt of a consideration of Rs. 1,900 and the story of loans as set up by the respondent No. 2 before the Concilia tion Court is a myth.

The Rule is opposed by respondent No. 2 only. He has affirmed an affidavit in which it has been stated that it is false that the Chairman of the Union Council took signature of the petitioner on blank papers and that the petitioner did not appear before the Conciliation Court. As a matter of fact, both the parties gave written consent to the effect that they would abide by the decision of the Conciliation Court. It has further been stated that the petitioners nominated two members, namely, Babu Dhirendra Chandra Pal and. Moulvi Kala Meah Sikdar on the 4th April 1962, and the story of oral protest made by him is absolutely false. The respondent then has asserted that as a matter of fact he did not sell or settle the properties in question with the petitioner and only took a loan of Rs. 1,900''L and at the instance of the petitioner executed the deeds of kobala and pitta.

Learned Advocate for petitioner has contended that the dispute in question could not be gone into by the Conciliation Court. In this connection he has drawn‑our attention to certain provisions of the Conciliation Courts Ordinance. Section, 3 of the Conciliation Courts Ordinance, hereinafter called the Ordi nance, deals with cases referable for conciliation by the Con ciliation Court. It provides that all cases falling under Part I of the Schedule shall save as otherwise provided hereinafter, be referred to Conciliation under this Ordinance and no Civil or criminal Court shall have jurisdiction to try any such case. It is then said that any of the case falling under Part II of the Schedule may be so referred if all the parties thereto agree to such reference Section B of Part I of the Schedule which deals with civil cases read as follows:

"Section B‑Civil cases.

Section B of Part II which also deals with civil cases' runs as follows:

"Section B‑Civil cases.

All civil cases (excepting those mentioned section B of Part I of this Schedule), in which the value or the claim does not exceed ten thousand rupees."

Indisputably the case in question does not fall under section B of Part I. It has been contended on behalf of the respondents that this case falls under section B of Part B. The question that arises is whether under section B of Part II, contemplate all civil cases except those falling under section B of Part I, o only civil cases of the nature mentioned in section B of. Part I, the claim of which does not exceed ten thousand. The word claim' in section B of Part II, in our view, clearly indicates civil cases in which there is claim for money only under this section. The preamble of the Ordinance recites that whereas it is expedient to make provision for the establishment of Conciliation Courts to enable people to settle certain disputes through conciliation, and for matters connected therewith; the President is pleased to make and promulgate the Ordinance. Subsection (2) of section 7 lays down that in a case relating to matter falling under section B of Part I of the Schedule or under section B of Part II thereof the Conciliation Court shall have the 'power to order payment of money up to the amount specified therein in respect of such matter or delivery of the property entitled thereto. These are, the powers of the Conciliation Court in regard to civil cases. The use of the expression "delivery of property" in this subsection obviously referring to movables is another indication of the fact that the Conciliation Court has jurisdiction in regard to money claims only be it on the ground of being due on contracts, receipts or other documents or for wrongfully taking movable property or causing damage to the same. Suits relating to immovable properties, the decision of which in most cases depends upon complicated questions of fact and law could never have been intended to be decided by the Conciliation Court under this Ordinance. The scheme of the Ordinance appears to be to vest the Court with exclusive jurisdiction to decide simple disputes involving money claims of small value and in regard to claims of value higher than one thousand rupees, the jurisdiction can be assumed only if both the contending parties want the same to be settled by the Conciliation Court. So far as the first class of cases is concerned, the majority decision is binding on the parties but so far as the second class of cases is concerned the decision must be unanimous in order to be binding on the parties. We are not impressed by the argument that section B of Part II covers all classes of civil suits up to the value of ten thousand rupees except those mentioned in section .B of Part I. It is common knowledge that having regard to the provisions of the Court Fees Act and the Suits Valuation Act a suit may be valued at a nominal sum though the dispute covers within its ambit properties of considerable value. This may be illustrated by citing the example of suits for injunction only. The value of such suits may be fixed at any amount as there is no objective standard for the determination of the value of such a relief. This fact alone is a pointer to the conclusion that section B of Part II does not cover all classes of civil suits.

The section, no doubt, has been inartistically worded but an examination of the whole scheme of the Ordinance leads us irre sistibly to the conclusion at which we have arrived. In the present case the question that arose was whether the petitioner as a matter of fact lent some money but had some deeds of sale and lease executed by the respondent No. 2. The determination of this question entails examination of complicated questions of fact and law. We are of the view that it was never the intention of the framers of the Ordinance that such disputes are to be settled by Conciliation Courts. Regard being had to what we have said already it must be declared that the judgment of the Conciliation Court has been passed totally without jurisdiction.

Mr. Farid Ahmed, however, has raised another point. He has contended that under rule 15 of the Conciliation Courts Ordinance Rules it is provided that the Chairman of the Conciliation Court shall ask the witnesses to mate statements on solemn affirmation or on oath and shall record or cause to be recorded the substance thereof. The judgment of the Conciliation Court makes it clear that witnesses were examined but an examination of the records of the Conciliation Court shows that the Chairman did not keep any record, whatsoever, of the evidence given by these witnesses. The relief sought in the present case under Article 98, clause (2) (a) (ii) is more or less in the nature of a writ Certiorari. Against the decision of the Conciliation‑Court, in the present case there was no revision to the District Judge under section 8 of the Ordinance. In this view of the matter we do not think the petitioner for the non‑observance of sub‑rule (2) of rule 15 can claim for a relief as contemplated in the above Article. As however we have upheld his contention on behalf of the petitioner this Rule is made absolute and it is declared that the judgment passed by the Khuruskul Conciliation Court is Case No. 5 of 1962, has been passed without lawful authority and the petitioner will be entitled to his costs against respondent No. 2 which we assess at 10 Gold mohors.

SIKANDAR ALI, J.

‑I agree.

K B: A, Rule made absolute.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.