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Civil Revision Application No. 232 of 1979, decided on 13th April, 1987.

‑‑‑ S. 9 & O.VII, R. 11‑‑Specific Relief Act G of 1877), Ss. 42 & 54‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 22 & 25‑‑Limitation Act (IX of 1908), S. 14‑‑Suit for declaration and injunction‑ ‑Application for rejection of plaint‑‑Grounds urged by applicant were that (i) suit was barred under Ss. 22 & 25, Displaced Persons (Compensation and Rehabilitation) Act, 1958, (ii) suit was time‑barred, and (iii) Court lacked pecuniary jurisdiction‑ Trial Court holding that issues raised in application could be determined at conclusion of trial after recording evidence and dismissing application as not tenable‑ ‑Section 9, C. P.C. , although indicates that civil Courts could not try suits in respect of which their jurisdiction was expressly or impliedly barred under any law but proceedings challenged as coram non judice were not covered by the exception contained in said section‑ ‑Averments in plaint being that proceedings before Settlement Authorities were coram non judice, Trial Court could not be said to have no jurisdiction to entertain the suit‑‑Court has only to look into averments made by plaintiff in plaint and no extraneous matter could be taken into consideration for purpose of rejection of plaint under O.VII, R.11, C.P.C.‑‑Proper conclusions not capable of being drawn, in instant case, by Trial Court until evidence had been recorded, application under O.VII, R.11, C.P.C., held, was rightly rejected.

Mubarak Hussain Siddiqui for Petitioner.

Akhtar Mahmood Khan for Respondents.

Date of hearing‑ 29th March, 1987.

‑‑The applicant is aggrieved by the order passed by the learned Vth Sr. Civil Judge and Assistant Sessions Judge, Karachi, dated 29‑5‑1979, dismissing his application under Order VII, Rule 11, C.P.C.

The respondent No.1 had filed a suit against the applicant and two others, namely Additional Settlement Commissioner Hyderabad and Deputy Settlement Commissioner Karachi, inter alia. praying for a declaration that the orders passed by the latter, dated 15‑4‑1975, 15‑5‑1975 and 10‑1‑1976 respectively were without lawful authority and of no legal effect and that the applicant in this case had no right title or interest as owner in respect of any portion of the tenement bearing No. G/5 situated in Arambagh Quarters Karachi. injunction was also sought to restrain the applicant from claiming any right title or interest in the said tenement.

During the pendency of the proceedings the applicant filed an, application purporting to be under Order VII, Rule 11, read with section 151, C.P.C. for rejection of the plaint. The main grounds urged by the applicant were that the suit was barred under sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that the suit was time‑barred. Besides that the pecuniary jurisdiction of the Court was also challenged in the application. The, learned trial Court was, however, not impressed by these contentions raised by the applicant and consequently it dismissed the application vide order dated 29‑5‑1979. First of all, the learned trial Court was of the view that since the respondent No.1 had filed Constitutional Petition before this Court which was disposed of with observations that the respondent No.1 could challenge the order passed by the Deputy Settlement Commissioner dated 15‑4‑1975 before a competent Civil Court, the learned trial Court had jurisdiction to entertain the suit. Besides that the learned trial Court held that the Issues raised in the applicant's application under Order VII, Rule 11, C.P.C. could be determined at the conclusion of the trial after evidence was recorded in the case. Consequently, it held that the application was not tenable and dismissed the same.

I have heard Mr. Mubarak Hussain Siddiqui, learned counsel for the applicant and Mr. Akhtar Mehmood, learned counsel for the respondent No. 1

The main contentions of Mr. Mubarak Hussain Siddiqui before this Court have been the same as were raised on behalf of the applicant before the learned trial court. It has been firstly argued by him that the suit was not competent in view of the provisions of sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, The said sections provide as follows:‑

"SECTION 22. FINALITY OF ORDERS‑ save as otherwise expressly provided in this Act, every order made by any Officer appointed under this Act shall not be questioned in any Court.

"SECTION 25. BAR OF JURISDICTION‑‑Save as otherwise provided in this Act, Civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act. "

No doubt sections 22 and 25 when read together attach finality to the orders passed under the aforesaid Act. According to Section 22 an order passed by any officer appointed under the Act cannot be questioned in any Court and section 25 provides for further bar in respect of exercise of jurisdiction against any such order. However, Mr. Akhtar Mehmood has pointed out that since the case of the respondent No.1 was that the orders passed by the learned Deputy Settlement Commissioner were completely without jurisdiction and nullity in the eyes of law, therefore, the orders passed by the said officers would not fall within the purview of either section 22 or section 25. Reference was also made in this respect to section 9 of the C.P. Code, According to section 9 of the Code of Civil Procedure the civil Courts have been empowered to try all civil suits except those which have been expressly or impliedly barred. The section states:‑

"the Courts shall (subject to the provision herein contained) have jurisdiction to try all suits of Civil nature excepting suits of which their cognizance is either expressly or impliedly barred."

Explanation ......

Although section 9 clearly indicates that Civil Courts cannot try suits in respect of which their jurisdiction is expressly or impliedly barred under any law for the time being in force, but there is no doubt that proceedings which are challenged as coram non judice are not covered by the exception contained in section 9. In the present case, according to the averments made by the respondent No.1 in the plaint, the proceedings before the learned Deputy Settlement Commissioner and the Additional Settlement Commissioner were coram non judice. It, therefore, cannot be said that the learned trial Court had no jurisdiction to entertain the suit.

The next argument of Mr. Mubarak Hussain Siddiqui was that the suit was barred according to Article 14 of the Limitation Act, the period of limitation provided therein being one year from the date of the act done or the order made by a Government servant. Although the arguments may otherwise be valid, but the question raised again requires reference to facts. Mr. Akhtar Mehmood has pointed out in this respect that since the respondent No.1 had filed a constitutional petition before this Court in respect of the same subject‑matter before institution of the suit, therefore, by virtue of section 14 of the Limitation Act, the time taken by the respondent in prosecuting the constitutional petition was to be excluded by the Court while computing the period of limitation. Without going into the question whether section 14 is applicable in the present case, the learned trial Court, in my opinion, cannot give any definite finding in this respect, unless evidence is recorded by it in the case. All these questions can be considered properly by the trial Court at the conclusion of the trial when evidence has been led before it. There can hardly be any cavil with the proposition that for the purpose of rejection of the plaint under Order VII, Rule 11, C.P.C. the Court has only to took into the averments made by the plaintiff in the plaint and no extraneous matter can be taken into consideration.. Since in the present case no proper conclusions could be drawn by the trial Court until evidence had been recorded by it, in my opinion, the application under Order V11, Rule 11, C.P.C. was rightly rejected.

For the aforesaid reasons, I have no other option but to dismiss this application. I am confident that the learned trial Court will consider all the objections raised by the applicant in his written statement at the time of conclusion of the trial. The parties are left to bear their own costs.

S.Q. /M‑122/K Application dismissed.

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