JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT, PESHA'
SUDICIAL DEPARTMENT,
ion Petition No. 829-P/2002
JUDG) \T
Date of hearing F 44% March, 2016
Petitioner(CoLAmir: By Mis Haji Qamar Zaman Tangi,
Khan and others} Tariq Khan Hoti and Shahzad
Gul, advocates
Respondent(Custodians By: Mr. Abdul Sattar Khan
Of Evacuee Property etc) Advocate
NISAR HUSSAIN KHAN, J... Petitioners have questioned
the judgment and decree of learned Additional District Judge-!l, Mardan
dated 297.2002 whereby petitioners’ appeal was dismissed and
Judgment and decree of learned Senior Civil Judge, Mardan dated
9.3.1992 dismissing the petitioners’ suit was maintained.
2 Mr.Qamar Zaman Tangi, learned counsel for petitioners
argued that both the courts below have erred in law by not considering
the revenue record fendered in evidence according to which petitioners’
predecessor was entered as owner of suit property since settlement of
1925-26 and til dato after his demise, his legal heirs were recorded asff!
‘owners. He maintained that only superstructure in the shape of flour
ills was installed by Hindu evacuee and Settlement Department or for
that matter the Custodian of Evacuee Properties have taken over rights
of the evacuees and not the local Muslims. He further submitted that the
trial court as well as the appellate court have wrongly decided the
issues of limitation because petitioners have filed the suit after
judgment of the august Supreme Court well within time, Mr.
Tariq Khan Hoti, learned counsel for petitioners contended that the
Instant Civil Revision is delayed by 10/11 days but that is condonable.
He maintained that suit as well as the Civil Revisions are well within
time; that petitioners are recorded as owners in the revenue record
which factum has not been considered by the two courts below; that in
view of the judgment of the august Supreme Court, civil court has the
Jurisdiction to entertain the suit while both the courts below have
wrongly returned their findings on the issue. Likewise, the principle of
resjudicata is not attracted to the instant case. In this regard placed
reliance on Devachand Muljimal Vs The Deputy Settlement and
Rehabilitation Commissioner Karachi and others( PLD 1965-Supreme
Gourt 356).
3. As against that, MrAbdul Sattar Khan, learned counsel
for respondents argued that petitioners have challenged the orders ofCustodian before the civil court which in view of the bar contained in
Section 44 of the Pakistan (Administration of Evacuee Properties) Act,
1957, lacks the jurisdiction. He maintained that the phrase “ if so
advised” has great significance with regard to jurisdiction and of other
{egal issues, in view of which permission was not unqualified and both
the courts below have rightly decided the issues of limitation,
Jurisdiction as well as resjudicata, On facts, he argued that PTO was
fssuod on 6.1.1961 while PTD was issued on 6.1.1969 against which
petitioners themselves invoked the jurisdiction of the Custodian who
after recording evidence, dismissed their objection while the High Court
elaborately discussed all the factual and legal aspects of the case and
have turned down their claim. He lastly submitted that the instant
revision petition is time barred which is not condonable, hence
deserves outright dismissal,
4 |! have heard the learned counsel for the parties and
have gone through the record with their valuable assistance.
4 Chequered history of the case dates back to 1953 when
the suit property having been considered as evacuee property was
allotted to Sufi Faizullah S/O Jemaluddin, a claimant. Legal heirs of
Nawab Sir Muhammad Akbar Khan filed a suit before the AssistantCustodian challenging the allotment in favour of Sufi Faizullah on the
‘ground that the property in question was not evacuee property but was
ownership of local Muslim and only superstructure of machinery
‘including the grinding flourmilis was the ownership of evacuee which
‘be removed and vacant possession be handed over fo them. Once
there suit was dismissed by the Assistant Custodian for lack of
evidence. The Additional Custodian by accepting appeal of the plaintifts
remitted the case to the Assistant Custodian to decide the lis afresh
after providing proper opportunity to the plaintiffs, to adduce necessary
evidence. After remand, it appears, that once against their suit was
dismissed and the same was the fate of their appeal. Being dis-satisfied
with the orders of the Settlement Authorities, petitioners filed W.P.No,
255/63 which too was dismissed by this court on 29,6.1968. Petitioners
filed C.P. No.29-P/1968 before the august Supreme Court which was
also dismissed on 24.10.1969 by discussing all factual and legal
aspects of the case, However, on the request of the petitioners’ counsel
that the order of Custodian on petitioner's claim under Section 22 was
without jurisdiction, it was observed by Hon'ble Supreme Court that the
petitioner himself invoked the Custodian's jurisdiction but if he fools
that it was @ wrong step ho can pursue his remedy in the civil court. He
may do so it so advised, in the light of last observation of the augustSupreme Court, petitioners filed Civil suit in the court of Senior Civil
Judge, Mardan in second round of litigation. Though there are some
interlocutory orders against’ which petitioners have filed
appeals/revisions which are irrelevant for the issue before this court
and what relevant is that the suit was dismissed after recording
evidence and same was the fate of appeal, hence the instant revision.
6 Dispute between the parties relates to property, which,
according to the petitioners was ownership of their predecessor, local
Muslim owner, which could not be considered as an evacuee property,
except the grinding Hour machine installed by the Hindu evacuee.
Whereas the Settlement authorities have treated it as an evacuee
property, put it in the Central Pool and allotted to the respondents. To
resolve the controversy, we have to revert to the Settlement Laws
enacted for allotment of the evacuee properties and setilement and
rehabilitation of the Muslim refugees. Section 3 of the Displaced
persons (Compensation and Rehabilitation) Act, 1958 empowers the
Central and the Provincial Government to acquire any evacuee property
‘and put the same in compensation pool by virtue of Section 4 of the ibid
Act. In terms of Section 9, Settlement Commissioner was to be
appointed who by virtue of Section 10 could transfer or dispose of any
property out of compensation poo! by sale, by means of auction or allotthe same in accordance with the allotment scheme chaiked out for that
purpose fo the rightful claimants. Contemporaneously Pakistan
(Administration of Evacuee Properties) Act-Xil of 1957 was in the field,
Section 3 of which contemplates that no person or property not treated
‘aS evacuee or as evacuee property immediately before 1st January,
1957, could be treated as evacuee or evacuee property after the sald
date, notwithstanding anything provided in the sald Act. It clearly
envisages that a property which was not declared as evacuee till
1.1.1987, could have never been considerad as evacuee property with
the exception that it would have no application fo a person or property
regarding which any action has commenced or any proceedings are
pending before the date mentioned therein for treating the same as
‘evacuse property. Particularly, Section 3(2)(b) stipulates that provision
of sub section (1) of Section 3 would have no application to any
properly which was occupied, supervised or managed by a person
whose authority or right to do so after 28 February, 1947 has not been
accepted or approved by the Custodian. By virtue of Section 7, all
evacuee properties were bound to vest and shail be deemed always to
‘have been vested in the Custodian with effect from the 1st day of
March, 1947. Section 12 of the ibid Act empowers the Custodian to take
over possession of the evacuee property. Rehabititation has been
vas
8 MAR 2016authorised under Section 18 of the ibid Act fo allot evacuee property
taken over by the Custodian for rehabilitation of displaced persons,
1. It appears from the record that all essential decisive
steps, in accordance with referred provisions of Administration of
evacuee Properties Act 1957 were taken by the Settlement authorities
by declaring the same as evacuee property and then took over its
possession and consequential allotment to Sufi Faizulfah S/O
Jamaluddin, The objection of any interested party, relating to such
property treated by the Custodian or Rehabilitation authority as
evacuee property, could be preferred before the Custodian in
contemplation of section 22 of the ibid Act, to the effect that the
property so declared as evacuee, is not the evacuee property or his
interest in the property should not be affected by virtue of sub section
(2), Any such objection was to be filed within 30 days, on which
Custodian was to hold enquiry and after taking such evidence,as could
be produced by the interested party, the Custodian was to pass an
order rejecting the application or alfowing it as a whole or in part.
Petitioners did avail the remedy provided under Section 22 before the
‘competent forum which was turned down, Thelr appeal preferred there-
against was also dismissed. Petitioners have questioned the order of
Custodian before this court in W.P.No. 255/1963 which was alsodismissed after considering all factual and legal aspects of the case
and it was maintained by the august Supreme Court, as well.
8 Case of petitioners is mainly based on the observations
of the august Supreme Court in last paragraph of the judgment which,
for convenience and to better appreciate the issue in hand, is
reproduced as follows ‘=
“The learned counsel for the petitioner submitted at the end
that the order of the Custodian department on the
petitioner's claim under section 22 oforesald, was without
Jurisdiction , as the property by then had been acquired by
the Central Government under Section of the Act. The
petitioner, had himself invoked the Custodian’s jurisdiction,
but if he feels that it was a wrong step he can pursue his
remedy in the Civil Court. He may do so ifso advised.”
9. Patitioners are trying to over-stretch the sentence: “but
if he feels that it was a wrong step he can pursue his remedy in the Civil
court,” to bring their case within the jurisdiction of the civil court, to
bounce back, on the basis of evidence fed in the trial of instant suit.
Firstly, observation so referred above are not unqualified. Rather it was
further observed by the august Supreme Court that “he may do so if so
advised”, The phrase “if so advised” is of great significance which
oTev
odhaway ian cour
2.8 MAR 2016explicitly implies that he may do so, but at his own risk and if so
permissible under the law. Moreso while considering the case of
petitioners viz-a-vie the referred last paragraph, one cannot loose sight
of the immediate preceding paragraph of same judgment of Supreme
Court which for ready reference is reproduced as follows :
“The High Court has further held that on the petitioner's own
‘admission in the claim application under section 22 of the
Displaced Persons (Compensation and Rehabilitation) Act,
the possession of the disputed property was taken over by
the Custodian as an evacuee property after partition and he
hhas exercised control over it since then. The High Court was,
therefore, right in holding that the property having been
treated a5 an evacuee property Immediately before the Ast
January, 1957, could not be declared as @ non-evacuee
property thereafter the writ petition was also found to suffer
from having been brought in 1963, although the Custodian
had decided the claim adversely to the petition in the year
1960. The delay in filing the petition was not satisfactorily
explained.
We do not consider that any case is made
‘out for our interference and we dismiss this petition.”
10. Once the competent forum had resolved the dispute
relating to the property in question that it was an evacuee property in
-iiEST10
terms of section 22 of the Pakistan (Administration of Evecuee
Properties ) Act, 1957, it could not be re-opened before the civil court, in
view of express bar contained in Section 41 of the ibid Act. In this
regard ratio of Ellahi Bakhsh and others_Vs_ Muhammad Siddique and
others ( 2008 SCMR - 312) may be relied upon. The judgment in
Devachand Muljimal's case (PLO 1965 Supreme Court 356) is
distinguishable on its peculiar facts, and is not relevant
11, Another argument on the question of jurisdiction, which
though has not been pressed, may be advanced that since repeal of the
Settlement Laws in 1974, the jurisdiction exclusively vests in the civil
court for determining the issue in hand, the plain and simple answer
would be that all the actions taken by the Custodian and Rehabilitation
authority under challenge in the suit, were passed when those jaws
were in operation. All actions taken, orders passed, notifications issued
are protected in terms of Section 6 of the General Clauses Act, 1897. So
this argument too is not available to the petitioners. in this regard
reference may be made fo the case of Nazir Ahmed and others Vs.
lam Mehdi and others ( 1988 SCMR - 824). Beside that not only
actions were taken during the subsistence of the Settlement laws but
even instant suit too was filed in 1969 when settlement laws were in
‘operation, hence this objection also would be irrelevant,12, Principle of resjudicata is embodied in section 11 of the
GPC which contemplates that no court shall try any suit or issue in
which the matter directly and substantially remained in issue in a
former suit between the sane parties or between parties under whom
they or any of them claim, litigating under the same title in a court
competent fo try such subsequent suit or the suit in which such issue
‘has been subsequently raised and has been heard and finally decided
‘by such court. In the instant case, undoubtedly, former litigation was
relating to the same property and were between the same perties but
were before the custodian, a special forum established under the
Special Statute which was vested with exclusive jurisdiction under
Section 22 of the Act Xil of 1957 to resolve the dispute as to whether
property is evacuee or otherwise. Of course Section 11 CPC
explanations-tl refers to the competence of Court trying former as well
as subsequent sults, For applicability of principle of resjudicata,
competence of former court is of paramount significance, which would
certainly bar the subsequent suit. The object of the principle is to put an
embargo on successive and repeated litigation on the same subject
‘matter between the parties. Main object of law of limitation and
resjudicata is to put an end to unwarranted and uncalled for litigation,
Which are laws of propriety, peace and tranquillity to put the litigation atro
rest on @ particular event. Since the Custodian was vested with
exclusive jurisdiction fo decide the issue in terms of section 22 of the
Act-Xil of 1957, so it was competent forum to decide the matter which
cannot be re-agitated before the civil court on principle of constructive
resjudicata. Such authority of custodian was provided with full foga!
Protection by expressly ousting the jurisdiction of Civil Court under
Section 41 of ibid Act. Assuming, if this court interferes and allows the
instant petition, it practically would not only set aside the judgment of
the trial court as well as the appellate court in this case but also
Judgment of the High Court passed in W.P.No.255/63 as woll as of the
august Supreme Court, which would be a nullity in the eye of law and
Violation of the principle of constructive resjudicata. Because the same
Subject matter was in issue between the same parties in the said Writ
Petition as well as the CPLA. Hence the leamed lower courts have
rightly resolved the issue of resjudicate against the potitioners,
2. Petitioners have produced some revenue record
‘according to which Nawab Sir Muhammad Akbar Khan was recorded as
owner of Khasra No.1548 but strangely such record was not tendered in
evidence before the Asstt: Custodian, though case was once remanded
‘on petitioners’ appeal for adducing such evidence. On the other hand,
there is # Provisional Transfer Order of 30.3.1961 in favour of Sufi
AY
MAR 20163
Faizullah followed by Permanent Transfer Order dated 6.1.1969
Ex.DW.1/2 & Ex.DW.1/3 respectively, relating to the transfer of Mandi C-
928/A Jogindar Singh Oil, Flour Grinding Mill against consideration of
‘Rs.50,603}- full amount of which was recovered. The amount mentioned
in the PTO, though at the moment, seems fo be meagre one but in 1964
it was a considerable amount, against which property in question was
transferred, followed by transfer of possession. These are the official
documents tendered in evidence which cary presumption of
correctness,
14, Though learned counsel for petitioners maintained that
the instant Civil Revision is delayed by 10/11 days which should be
condoned and learned counsel for respondents also sought dismissal
of the instant petition on the same ground, however, perusal of record
particularly, the judgment of the appellate court reveals that the
‘impugned judgment wes passed on 29.7.2002 and application for the
cortfied copies were filed on same date as por entries of the copying
branch. While copy was prepared and delivered on 27.9.2002 whereas
instant Civil Revision was filed, firstly on 22.11.2002 and then, after
removal of the objection, on 18.42.2002. Limitation provided in Section
145 CPC for filing revision petition is 90 days, The civil revision was
filed 9 days before the expiry of 90 days, even if it is considered to havebboen filed on 18.12.2002, So far as time consumed by the copying
branch in preparation of the copy and delivery is concerned, that is to
‘be excluded in terms of Section 12(2) of the Limitation Act. Section
29(2) of the Limitation Act with reference to period provided in Section
115 of the Civil Procedure Code for purpose of reckoning of period of
limitation, came under consideration before the august Supreme Court
in case titled Hafeez Ahmad & others Vs Civil Judge Lahore and others {
PLO 2042 Supreme Court - 400). wherein it was settled once for all that
Code of Civil Procedure for the purpose of limitation provided in
‘Section 115 CPC shail be considered as special law and Section 4, 9 to
18 and 22 of the Limitation Act shail be applicable unless it is expressly
excluded by such special or local law. Since Section 12 has not been
‘specifically or expressly excluded by the Code, hence it would squarely
‘be applicable to revision petition filed under Section 115 CPC and in
view of the ratio decidendi of case supra, the time consumed in
obtaining the certified copies shall be excluded from the period of
limitation prescribed therefor. Admittedly, on exclusion of the period
consumed in obtaining the certified copies, instant civil revision is well
within time, hence objection so raised and the concession so offered by
counsel for petitioners is misconceived and misplaced,15 For what has been discussed above, this court could
Not find any misreading or non-reading of evidence nor any violation of
law which may warrant interference of this court in concurrent findings
Of facts as well as law, recorded by courts below. Thus finding no
‘merits, this revision petition stands dismissed, with no ordor as to
costs.
sos nar Hasson om J)
Announced on
‘ath March, 2046