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Regular Second Appeals Nos.121 to 126 of 1976 and 621 of 1975, decided on 17th February, 1987.

---S.74-A [as amended by Thal Development Act (Punjab Amendment) Ordinance (XIX of 1975)--Colonization of Government Lands (Punjab) Act (V of 1912), S.36--Allotment of land--Cancellation of allotment without notice--Effect--Civil Court's jurisdiction whether divested by S.74-A of Ordinance XIX of 1975--Whether assertion in suit was that notice was not given before cancelling the allotment and that Authority had not acted under the law, civil Court, held, could not have thrown out suit on question of jurisdiction--Factum of cancellation without notice being a question of fact would require adjudication on basis of evidence to be led during trial--Civil Court not divested of its jurisdiction to determine question of legal effect of the order of Revenue Officer on rights of parties before him--Obligatory for Civil Court to look into grievance of parties in accordance with established principles of law.

Barkat 'Ali v. Administrator, Thal Development P L D 1978 Lah. 867 ref.

---S.74-A--Civil Procedure Code (V of 1908), S.100--Second appeal- Cancellation of allotment without notice--Judgment and decree of First Appellate Court dismissing appeal for lack of jurisdiction was set aside by High Court on the ground that Civil Court was not divested of its jurisdiction to adjudicate matter where allotment had been cancelled without notice to such allottee--High Court accepted appeal and remanded case to Trial Court for disposal on merit in accordance with law.

Malik Mahmood Majid Khan for Appellant.

Muhammad Iqbal for Respondent.

Date of hearing: 17th February, 1987.

This judgment will dispose of 7 appeals bearing Nos. RSA No.621/75, 121/76, 122/76, 123/76, 124/76, 125/76 and 126/76 as in all these appeals common questions of law and facts are involved.

2. The appellants/ plaintiffs filed their respective suits alleging that they had paid under the contract, a portion of the sale price and according to the terms and conditions applicable to the parties, the Thal Development Authority, the respondent, was under obligation to make the trial boring; to level the land which was allotted to each of the appellants/plaintiffs within a specified period and then after fulfilling these obligations demand to pay outstanding price through instalments could be made. It was asserted that the respondent without serving any notice and acting illegally and unauthorizedly cancelled the allotment. The learned trial Judge, vide judgment, dated 24-9-1975, dismissed each of the suits recording the finding that the Civil Court lacked jurisdiction in the matter in view of the Thal Development (Punjab Amendment) Ordinance XIX of 1975. The appeals filed by the appellants/ plaintiffs were also dismissed in limine vide order, dated 17-12-1975 of the then District Judge, Mianwali. The present regular second appeals were then filed.

3. Learned counsel for the appellants placed reliance on Barkat Ali v. Administrator, Thal Development P L D 1978 Lah. 867 wherein the learned Judge of this Court held that:-

"The rights are to be governed by the law in force when the action was commenced and change of 'the law during the pendency of the suit, unless purely procedural, does not affect its course or tenor and that section 1(2) of the Ordinance did not take away the vested rights or impair the pending action in express terms or by necessary implication."

On the question of interpretation of section 74-A added by Ordinance XIX of 1975, the learned Judge observed as under:-

Section 36 of Act V of 1912 and the instant section 74-A being in pari materia, there was definitely a question in this case for determination by the Civil Court whether the act of the Collector in cancelling the allotment was without notice, and was thus taken not "under the Act" and whether the Civil Court was not divested of its jurisdiction to decide it."

4. Following the afore-quoted view, it is evident that the Civil Court could not have thrown out the suits on the question of jurisdiction. In each of the suits filed by the appellants, the assertion made inter alia was that notice was not given before cancelling the allotment and as such the respondent had not acted under the law. The question whether the aforesaid assertion is factually correct or not, is a separate question which will require adjudication on the basis of evidence to be led during the trial. But the suit which rises such a question cannot be thrown out without a trial. Section 74-A introduced by Ordinance XIX of 1975 did not divest the Civil Court of its jurisdiction to determine the question of legal effect of the order of the Revenue Officer on the rights of parties before him. It was obligatory for the learned trial Court to look into the grievance of the appellants/ plaintiffs in accordance with the well established principles of law.

5. For the foregoing reasons, these appeals are accepted. The judgments and decrees of the learned Courts below are set aside with the result that the suits of the appellants/plaintiffs shall stand remanded to the learned trial Court for disposal on merits in accordance with law. The respondent shall bear the costs of appellants.

A . A . / B-10 / L Appeals accepted.

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