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Civil Revision No. 709 of 1986, decided on 10th November, 1986.

‑‑O. VII, R. 11(d)‑‑West Pakistan Waqf Properties Ordinance (XXVIII of 1961), S. 17‑‑Rejection of plaint‑‑Jurisdiction of civil Court having been expressly barred under S.17 of Ordinance XXVIII of 1961 in cases where legality of anything done under said Ordinance was challenged, legality of subsequent notification issued under said Ordinance with which earlier notification was withdrawn by Auqaf Authority, held, could not be challenged before civil Court‑‑Plaint filed to challenge such notification was rightly rejected by Appellate Court below under O. VII, R.11(d), C.P. C. in circumstances.

Muhammad Din and others v. Administrator‑General of Auqaf, Pakistan and 2 others 1979 C L C 551 ref.

‑‑S. 92 & O. VII, R. 11(d)‑‑Suit relating to Waqf created for public purposes‑‑Rejection of plaint‑‑Suit relating to alleged breach of Waqf created for public purposes filed without complying with mandatory provisions of S. 92, C.P. C. which provided that such suit could be filed by two persons with consent of Advocate‑General‑‑Effect‑‑Such suit being barred by law, plaint, held, merited rejection under O.VII, R.11(d), C.P.C.

‑‑O. VII, R. 11(d), Ss. 92 a 115‑‑West Pakistan Waqf Properties Ordinance (XXVIII of 1961), S. 17‑‑Rejection of plaint‑‑Revisional jurisdiction, exercise of‑‑Application of petitioner for temporary injunction dismissed by Trial Court‑‑Appellate Court below not only dismissed appeal against order of Trial Court, but also rejected plaint of petitioner holding that case of petitioner was barred under S. 92, C.P.C. and S.17 of Ordinance (XXVIII of 1961)‑‑Order for rejection of plaint passed by appellate Court being proper and lawful, High Court in exercise of revisional jurisdiction upheld such order and refused to remand case.

Mst. Khurshid Begum and 7 others v. Inam Rabbani and another 1979 C L C 570 and Suleman Khan and 2 others v. Nazar Khan and another 1983 C L C 1502 ref.

Syed Murtaza Ali Zaidi for Petitioner.

Date of hearing: 10th November, 1986.

This order will dispose of this revision petition (C. R. 709/86) as also revision petition No.710/86 as the factual and legal points involved in the same are exactly similar.

2. A Waqf in respect of the property in dispute was created by Sardar Kauray Khan through a Will dated 5‑10‑1894. The property in dispute was taken over by the Auqaf Department through Notification dated 17‑12‑1973. The said notification was rescinded (withdrawn) by a subsequent notification dated 26‑4‑1983. The petitioners of both the cases claimed that they had obtained their respective parts of the property from respondent No.2, the Auqaf Department, on lease for 2 years from 1981. They challenged the withdrawal of the earlier notification dated 17‑12‑1973 through the subsequent notification dated 26‑4‑1983 through the present suit alleging that the said latter notification was illegal. Alongwith the suit they filed applications for issuance of temporary injunction restraining the respondents from interfering in their possession. The said applications were dismissed by the learned Civil Judge Muzaffargarh vide order dated 16‑7‑1984. They filed appeals which were dismissed by the learned District Judge, Muzaffargarh vide order dated 1‑11‑1986. Through the same order he also rejected the plaints of both the cases obviously under Order VII, Rule 11, C.P. C. The revision petitions have been filed against the said orders.

3. I have perused the record and have heard arguments. Section 17 of the Waqf Properties Ordinance, 1961 bars the jurisdiction of a civil Court in case where the legality of anything done under the said Ordinance is questioned. The notification dated 26‑6‑1983 withdrawing the earlier notification dated 12‑7‑1973 was issued under the said Ordinance and the legality of the said notification of 1983 could not be questioned before a civil Court. This would mean, that the case was expressly barred by the said Ordinance of 1961 and the case would, therefore, fall under Rule 11(d) of Order VII, C.P. C. In this respect

I would refer to Muhammad Din and others v. Administrator‑General of Auqaf, Pakistan and 2 others 1979 C L C 551. In a similar case governed by a similar Federal law i.e. the Auqaf (Federal Control) Act, 1976 it was held that the jurisdiction of the civil Courts in a case where such a notification was challenged was barred under the provision of that law. The present case as pointed out just now is quite similar to the same and the law laid down in the said ruling, is therefore, applicable on all four.

4. Again the suit relates to an alleged breach of trust (Waqf) created for public purpose by Sardar Kauray Khan, Section 92 of the Code of Civil Procedure, 1908 provides that if some persons other than the Advocate‑General have to file a suit in respect of such property the same is to be filed by at least 2 persons and that too with the consent of the Advocate‑General. The present suits have not (sic) been filed without complying with the said mandatory provision of law. On that account also the cases were barred by law and the plaints merited rejection under Order VII, Rule 11(d), C.P. C.

5. Learned counsel for the petitioner has argued that under the law laid down in Mst. Khurshid Begum and 7 others v. Inam Rabbani and another 1979 C L C 570 and Suleman Khan and 2 others v. Nazar Khan and another 1983 C L C 1502 an appellate Court is not competent to reject the plaint when the appeal before him is only in regard to a miscellaneous application. A perusal of the said two cases will show that the same are quite different. In the first case temporary injuction had been allowed by the Administrative Civil Judge, Faisalabad and the appeal had been dismissed. The question of rejection of plaint did not arise at all in that case and the law laid down therein is that while deciding such application merits of the case need not be discussed as that will amount to decision of the whole case. The second case relates to the making up of the deficiency in the Court‑fee on the memorandum of appeal. It was held that the appellate Court was not bound to go through the formalities of given opportunity etc. for making up the deficiency in Court‑fee under Order VII Rule 11, C.P.C., meaning that the appellate Court could right‑away dismiss the appeal on that ground and in fact the appeal was so dismissed. In this connection I will refer to Syed Zahid Hussain and another v. Capital Development Authority, Islamabad 1979 C L C 502. The facts of that case are quite similar to the cases in hand. In that case temporary injunction had been issued by the learned trial Court and the learned Additional District Judge while hearing the appeal against the same rejected the plaint on the ground that the plaintiff of that case had no locus standi for the case. It was held that even the trial Court was bound to do what had already been done by the appellate Court and, to the trial Court merely for its rejection. It was further held that the exercise of jurisdiction under section 115 C.P. C. being discretionary with the High Court, it was not a fit case for exercise of discretion in favour of the petitioner of that case. Similarly, it will be an exercise in futility the cases are remanded to the learned trial Court merely for rejection of the plaints because as held above the cases are barred not only under the Waqf Properties Ordinance, 1961 but also under section 92 C.P.C. The revision petition is, therefore, dismissed in limine.

H. B. T./M‑25/L Revision petition dismissed.

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