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Regular Second Appeal No.779 of 1975, decided on 28th February, 1987.

---S.74-A [as added by Thal Development (Punjab Amendment) Act (XLVI of 1975)]--Order of Revenue Officer--Legal effect--Jurisdiction of Civil Court whether barred--Civil Court, held, not divested of its jurisdiction to determine question of legal effect of order of Revenue officer on right of parties before him.

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

Sh. Naveed Shaharyar for Appellant.

Abdul Sattar Chaughtai for Respondent No.2.

Dates of hearing: 17th and 21st February, 1987.

This judgment will dispose of Regular Second Appeals bearing Nos. 502, 487, 488, 489, 644, 779 of 1975 and 66/76 as common questions of facts and law are involved in all these appeals.

2. The appellants/ plaintiffs in all these appeals filed their respective suits alleging that the land in question which was allotted to them as tenants under various schemes could not be legally cancelled from their names and that the orders of resumption passed against them by the Authority were illegal, null and void for want of notice as well as due to non-fulfilment of the terms and conditions of allotment by the respondent Authority itself. All the suits filed by the present appellants/plaintiffs were decreed by the learned trial Court vide judgments and decrees passed in each of these suits. These judgments and decrees of the learned trial Court were then assailed by the Administrator, Thal Development Authority and others by filing appeals and the same were accepted by the learned first appellate Court and the suits of the appellants/ plaintiffs were dismissed as the learned first appellate Court was of the view that the Civil Court lacked jurisdiction in view of section 74-A added to the Thal Development Act XV of 1949 vide Thal Development (Punjab Amendment) Act (XLVI of 1975 published in the Extra-Ordinary Gazette, dated 19-7-1975. The present regular second appeals were then filed by the appellants/ plaintiffs to challenge the aforesaid judgments and decrees of the learned appellate Court.

3. Learned counsel for the appellants argued that the view which prevailed with the learned first appellate Court is not sustainable in view of the law laid down in Barkat Ali v. Administrator Thal Development P L D 1978 Lah. 867. He particularly relied on the following observation:-

"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 as 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 aforequoted view, it is evident that the learner: first appellate Court was not right in throwing out the suits on the question of jurisdiction. In each suit 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. 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 right of parties before him, The first appellate Court was, therefore, under obligation to examine the judgments impugned before it on merits.

5. For the foregoing reasons, the impugned judgments and decrees are liable to be set aside and the same are hereby set aside with the result that the appeals filed by the respondent before the learned first appellate Court shall be deemed to be still pending and the same shall be disposed of in accordance with law.

6. Before parting with this judgment, notice of some of the other pleas taken before me by some of the learned counsel for the respondents may be taken. It was submitted that in Jl these cases, the allotments were cancelled in the years, 1957, 1958 and 1966, after serving notice to the parties and some of the appellants were also refunded the earnest money deposited by them, or: their own request and as such the appellants are not entitled to seek equitable relief from the Civil Court as the foundation of the claim made by each of these appellants rests upon illegality. It was also submitted that the land was acquired by the Provincial Government under Notifications Ex. D-1 and Ex. D-2 anal as such no relief could be claimed in the absence and without impleading the Provincial Government as a party. It was added that the record available with the respondent Authority may also be allowed to be produced for a just decision of the suits. Finally it was argued that because of certain intervening events the right to retain the land in question has come to an end. As the appeals stand remanded, the first appellate Court will be at liberty to take notice of the intervening events as well as of other pleas, legal and factual otherwise available to the parties under law. The parties will also be free to seek production of additional evidence and if any such request is made, the same will be disposed of in accordance with law. With these observations, the appeals sire accepted with cost.

H. B.T./M-155/L Appeal accepted

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