ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

R. A. No. S – 108 of 2018

Date of hearing

Order with signature of Judge

Hearing of case (priority)

1. For hearing of main case

2. For hearing of CMA No.899/2018

(Notice issued to respondents)

15.04.2019

M/s Muhammad Aqil and Abdul Qadir Shaikh, Advocates for the applicants.

Mr. Noor Hassan Malik, Assistant Advocate General Sindh.

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This revision is against the concurrent findings of two Courts below. The trial Court rejected the plaint, whereas, the appellate Court maintained that order. The trial Court found it convenient to reject the plaint on the ground that the suit for declaration and permanent injunction was filed against the defendants who are revenue officers except defendant No.6 S.H.O., P.S. B-Section, Khairpur, and it was asserted in the plaint that on the basis of false, forged and manipulated entries and on the false report of defendant No.4, defendants No.2, 4 and 6 were visiting the property frequently along with their staff. It was maintained that in terms of Section 11 of Sindh Revenue Jurisdiction Act, 1876, the jurisdiction of the Civil Court is barred. The provisions of Section 11 of Sindh Revenue Jurisdiction Act, 1876 are reproduced as under:

“ No Civil Court shall entertain any suit against the Government on account of any act or any omission of any revenue officer unless the plaintiff first proves that, previously to bring his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present. ”

The jurisdiction of a Civil Court cannot be completely ousted against the officials on account of any colourful exercise of powers. The mandatory test is to be seen by consequential provisions. The jurisdiction to be exercised by these officials should strictly be within the four corners of the statue and not otherwise. In case it is so pleaded, it needs probe and unless such questions are dealt with accordingly after an enquiry and probe, plaint cannot be summarily rejected as has been done in this case. I am not commenting about the merit of the case which may go either way, but it is the manner in which a plaint was dealt with.

In the case of Ghulam Ali v. Asmat Ullah and another reported in 1990 SCMR 1630, the Hon'ble Supreme Court, while considering the issue of rejection of plaint, held that the assertions made in the plaint had to be seen for the purpose of determining whether the plaint disclosed any cause of action. Lack of proof or weakness of proof in circumstances of case did not furnish any justification for coming to conclusion that there was no cause of action or that the complainant / plaintiff was prevented from invoking the jurisdiction of Civil Court to unearth the mala fides of the officials and, hence, Section 11 of Sindh Revenue Jurisdiction Act, 1876 cannot be applied blindly.

Similarly, in the case of Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others reported in 1994 SCMR 826, the Hon'ble Supreme Court held that while rejecting a plaint, the trial Court cannot take into consideration the plea of the defendants when such plea is disputed and denied by the plaintiff.

At the most, an issue to such an extent, in case it encamps the point of maintainability, could be framed whereafter a suit could be dismissed but not otherwise. In this case, neither an issue was framed nor the circumstances so warrant that the trial Court rejected the plaint.

Insofar as the case of S. M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through legal heirs reported in 2002 SCMR 338, as relied by learned AAG, is concerned, it talks about the burial of the suit at the earliest. It does not mean that an illegal and unlawful order be passed. Earlier, burial means that the question regarding maintainability and the question that requires consideration as far as Order VII Rule 11, CPC, is concerned, is to be taken into consideration at the earliest and not belatedly, hence, distinguishable.

The two orders impugned passed by the trial Court and the appellate Court are, thus, set aside; the revision is allowed to the above extent and the case is remanded to the trial Court to proceed in accordance with law.

J U D G E

Abdul Basit