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First Appeals Nos. 54 and 55 of 1980, decided on 9th May, 1984.

---S. 7--Sind Waqf Properties Ordinance (IX of 1979), Ss. 7 & 21 Civil Procedure Code (V of 1908), S. 11, O. VII, r.11--Rejection of application--ices judicata--Principle of--Applicability--First application made under 0. VII, r. 11, C.P.C. under West Pakistan Waqf Properties Ordinance, 1961 rejected--Subsequent application having been made on promulgation of fresh notification under new Ordinance, 1979 which had suspended previous notification under Ordinance, 1961, held, was not barred by principle of res judicata.

P L D 1960 Lah . 396 distinguished.

---S. 7--Powers of Administrator to issue notification--Administrator not prevented from issuing fresh notification under S. 7 of Ordinance, 1979 pending suits and injunction order--Administrator has unfettered power to issue notification to assume administration of Waqf property notwithstanding any decree--Judgment of any Court or any proceedings pending before Court.

---Ss. 7 & 11--Determination of question, whether property in dispute was Waqf or, not--Proper course--In case party was aggrieved by issuance of subsequent notification under S. 7 of Ordinance, 1979, right to challenge, notification, held, was by filing petition under S. 11 of Waqf Property Ordinance, 1979 and not by challenging same in civil Court.

Jhamat Jethanand for Appellants.

Imam Ali G . Kazi for Respondents.

Date of hearing: 9th May, 1984.

As both the appeals have been directed against same judgment of learned District Judge, Thatta in Civil Suits Nos.- 7 of 1978 and 10 of 1978, dated 20-10-1980, hence they were beard together and are being decided by this judgment. The appellants had filed Suits Nos. 7 of. 1978 and 10 of 1978 before District Judge, Thatta for declaration, possession and permanent injunction in respect of certain. agricultural land which was taken over by the Chief Administrator Auqaf by notifica tion, dated 25-4-1977 issued in exercise of power under section 7 of the Sind Waqf Properties Ordinance, 1961. By ' this notification total area of 19 Acres and 27 Ghuntas was taken 'over, which included an area on which Dargah Shah Yaqiq was situated. In this notification survey, numbers- of the agricultural lend which was taken over, were not mentioned. By another notification of the same- date some other land was also taken over by respondent No. 1, the Chief Administrator. Hence the appellants who claimed to be owners of the land which was taken over by the Administrator, filed two suits for declaration etc. as stated above. During the pendency 4f the suits applications were made on behalf of the respondents that the suits were barred by the provisions of the Sind Waqf Properties Ordinance, 1961, hence the plaints should be rejected. The learned District Judge by his order, dated 1-7-19'79 rejected the applications of the respondents in the two suits on the ground that the Survey numbers 939 and 103 which were claimed, by the appellants, were not included in the impugned notification and as such the suits were not barred.

2. In the two suits applications were also moved under Order XXXIX, rules 1 and 2, C.P.C. restraining the respondents from disturbing the possession of the appellants over the survey numbers in question. These applications were granted.

3. However, during the pendency of the suits, Sind Waqf Properties Ordinance, 1979 (hereinafter referred to as the said Ordinance) was promulgated on 12-4-1979. Section 7 of the said Ordinance is relevant for the purpose of deciding these appeals. Hence it is reproduced hereunder: -

"7. Chief Administrator may take over Waqf Property by notification:-

(1) Notwithstanding anything to the contrary contained in section 22 of the Religious Endowments Act, 1863 (XX of 1863), or any other law for the time being in force, or in any custom or usage, or in any decree, judgment or order of any Court or other authority, or in any proceedings pending before any Court or other authority the Chief Administrator may, by notification, take over and assume the administrative control, management and maintenance of a Waqf Property:

Provided that, during the lifetime of a person dedicating a Waqf, the Chief Administrator shall not take over and assume the administration, control, management and maintenance of the Waqf property except with the consent of such person and on such terms and conditions as may be agreed upon between such person and the Chief Administrator."

Explanation.-- For the purposes of this section, 'control' and 'management' shall include control over the performance and management of religious, spiritual,. cultural and other' services and ceremonies (Rasoomat) at or in a Waqf property.

(2) No person shall perform services or ceremonies (Rasoomat) referred to in subsection (1), except with the prior permission of the Chief Administrator and in accordance with such directions as may be given by him."

After the promulgation of the said Ordinance, the Chief Administrator Auqaf issued fresh notifications on 28th April, 1979 taking over the management of the entire suit land which is subject-matter of the two suits. In these notifications the survey numbers of the disputed lend were also specified. After issuance of these notifications, the respondents filed fresh applications under Order VII, rule 11, C.P.C. praying that the plaints in the two suits may be rejected, the same being barred by virtue of section 21 of the said Ordinance. The learned District Judge, after hearing the learned counsel for the parties came to the conclusion that the suits were hit by the mischief of section 21 of the said Ordinance and as such the plaints were liable to be rejected. Accordingly by his order, dated 28th October, 1980, he rejected plaints in the two suits. The above order has been challenged by the above appeals.

4. Mr. Jhamat Jethanand learned counsel for the appellants has contended that the first applications under Order .VII, rule 11 were rejected by the learned District Judge by his order, dated 1-4-1979 A Hence the question had become res judicata and fresh applications under Order VII, rule 11, C.P.C. were barred. His argument is that the principle of res judicata applies not only to the suits, but also to applications. In support of this plea he has relied on P L D 1960 Lah. 396.

5. The argument is misconceived, because fresh applications were made on promulgation of the fresh notification under the new Ordinance -of 1979, which had superseded the previous notification. It has been conceded by Mr. Jhamat Jethanand that respondent No. 1 was not prevented from issuing a fresh notification under section 7 of the' said ordinance in spite of pendency of these suits and in spite of injunction order. It has . nowhere been pleaded -that the fresh notification was mala fide. Section 7 of the said Ordinance gave unfetterred power to 1 the Administrator to issue notifications to assume administration of Waqf property notwithstanding any decree, judgment, order of any Court or in any proceedings pending before a Court. The contention of Mr. Jhamat Jethanand however, is that the Chief Administrator could have issued notification under section 7 of the said Ordinance only in respect of Waqf property and not in respect of properties which were not Waqf and that the question whether the properties in dispute were Waqf Properties or not, was subjudice before the Court. Therefore, the impugned notifications; were not impugned from being challenged in civil suits: This argument-is also without any substance, because if a party is aggrieved by the issuance of such notification, then he is given a right to challenge the notification by a petition under section 11 of the said Ordinance which is reproduced hereunder for the sake of convenience:-

"11. Petition to District Court against notification.-- (1) any person claiming any interest in any Waqf property in respect of which a notification has been issued under section 7 may, within thirty days of the publication of such notification, petition to the District Judge within whose jurisdiction the Waqf property or any part thereof is situated, for a declaration:--

(a) that the property is not Waqf Property;

(b) that the property is Waqf property within limits stated in the petition."

It has been stated by Mr: Jhamat Jethanand that he has already resorted to remedy under section 11 of the said Ordinance. In view of this statement even otherwise the two 'suits of the appellants were liable to be dismissed as having become infructuous because an alternate remedy had been availed of which was more efficacious -than civil suits.

For .the above reasons no exception can be taken to the order of the learned District Judge, whereby the plaints were rejected under Order VII, rule 11(d), Cr.P.C. There is no substance in these appeals which are dismissed with costs.

It may, however, be stated that during arguments Mr. Imam Ali . Kazi, learned counsel for the respondents, gave a statement that now the Waqf properties have been given. under the management of Chairman of District Councils, who have been appointed ex officio Administrators in respect of Waqf properties taken over by the Auqaf Department and situated within their jurisdiction. He further states 'that the present Chairman of the District Council in the capacity of Administrator is still prepared to entertain the claim of the appellants in respect of the disputed land and that if the appellants succeed in proving that the disputed land does not form part of the Waqf property, then appropriate orders shall be passed according to law.

In both the appeals, the respondents had filed applications for appointment of Receiver under Order XL, rule 1, C.P.C. These applications were ordered to be heard alongwith the main appeals. Mr. Imam Ali Kazi learned counsel for the respondents has not pressed these applications which are dismissed. With these observations both the appeals and the applications stand disposed of accordingly.

H . B . T .

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