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Civil Petition for Special Leave to Appeal No. 136‑P of 1983, decided on 20th June, 1983.
(On appeal against the judgment of the Peshawar High Court in Civil Revision No. 4110 of 1981 dated 1‑3‑1983).
‑‑‑Art. 185 (3)‑Dir and Swat (Settlement of Disputes of Immovable Property) Regulation, 1972, para. 5 (as amended by Dir and Swat Devo lution and Distribution of Property and Settlement of Disputes of Immovable Property), Amendment) Regulation, (II of 1975), para. (3) read with Sched. 1 & 2 and paras. 14 & 17]‑Dispute as to rights in law‑Jurisdiction of civil Court‑Subject‑matter of suit not amenable to adjudication by tribunal constituted under Regulation because of parties having not consented to such reference‑Jurisdiction of civil Court, held, not excluded‑Leave to appeal refused.
S. Safdar Hussain, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 20th June, 1983.
The two petitioners who are defendants in a pending civil suit seek leave to appeal against the judgment of the Peshawar High Court dated 1st of March, 1983 whereby civil revision petition challenging the assumption of jurisdiction by the civil Court and rejection of their objection to it was dismissed.
A representative suit was filed in the Court of Senior Civil Judge Mala kand wherein the plaintiffs‑respondents claimed the ownership of suit land to village Meena Menarvi Tehsil Dargai, District Malakand. The petitioners by an application dated 13‑4‑1981 objected to the jurisdiction of the civil Court. It was claimed by them that under Provincial Regulation No. 11 of 1975 paragraph 3 the Civil Court had no jurisdiction to entertain or proceed with the suit. The learned Senior Civil Judge examined this objection and rejected it. The revision petition filed by the petitioner challenging that decision also failed.
The learned counsel for the petitioners contended that in view of the provisions contained in para. 3 read with Schedules 1 and 2 and paras. 14 and 17 of Provincial Regulation No. 11 of 1975 the jurisdiction of the civil Court was barred in the matter. He has reinforced his conclusion by reference to Provincial Regulation No. IV of 1976 also.
We have examined with the assistance of the learned counsel for the petitioners the various provisions of Regulation No. 11 .of 1975. The dispute pending in the civil Court related to rights in land. It, therefore, stood excluded from Part I of the Schedule and fell in Part 2 of the Schedule. Under para. 3, clause (b) a matter falling under Part 2 of the Schedule could be referred to the Tribunal constituted under that Regulation only if all the parties thereto agreed to such a reference. That condition remaining unsatisfied a reference to the tribunal was out of question. Under paras. 14 and 17 the bar to jurisdiction is only in respect of those matters which could be dealt with under the Regulation and no other. As demonstrated, the subject‑matter of the suit was not amenable to adjudication by tribunal constituted under the Regulation because of the parties to the dispute not having consented to such a reference. The exclusion of the jurisdiction of the civil Court did not come into existence at all.
As regards Provincial Regulation No. IV of 1976 its effect and scope has been noted by the Senior Civil Judge as well as by the High Court in the impugned orders. Even the learned counsel for the petitioners concedes that this amending law was tots applied to Malakand protected area to which the earlier Regulation applied and in which the suit property is located. In view of the inapplicability of Provincial Regulation No. IV of 1976 to' B the area where the suit property is situated it is only Provincial Regulation No. II of 1975 which governs the rights of the parties and, as shown, it does not bar the jurisdiction of the civil Court.
We do not find any error of law in the impugned orders and leave to appeal is, therefore, refused.
Leave refused
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