Forum of Appeal Against Order of Chairman Evacuee Trust Properties

Forum of Appeal Against Order of Chairman Evacuee Trust Properties Case Laws Civil Law Constitutional Law Coram non judice Evacuee Property Forum of Appeal Knowledge - Civil Law Knowledge - Constitutional Law Litigation & Arbitration Solutions - Civil Law Solutions - Constitutional Law Supreme Court Mr. Justice Ejaz Afzal Khan in his judgment has decided the issue regarding forum of appeal against order of Chairman Evacuee Trust Properties under Evacuee Trust Properties (Management and Disposal) Act 1975 in Civil Appeals No. 1540 of 2006 etc.

1. This appeal with the leave of the Court has arisen out of the judgment dated 09.05.2006 of Lahore High Court whereby the learned Single Judge in its Chambers dismissed the revision petition filed by the appellant. Facts of the case as narrated in para 2 of the leave granting order read as under:

“2. The brief facts for disposal of this petition of that petitioners and respondents No. 4 and 5 filed a suit against respondent Nos. 2 and 3 for specific performance of agreement dated 28.03.1995 in respect of land comprised in Killa Nos. 1, 2, 9, 10, 11, 20 and 21 of square No. 35, and killa No. 228, 13 to 18, 24 and 25 of square No. 36 measuring 187 kanals, 1 marla situated in Chak No. 124/JB Tehsil and District Faisalabad. The suit was decreed on conceding statements dated 18th December, 1995 and 21st January, 1996 whereby the suit was decreed to the extent of 15 kanal in favour of respondent No. 5 and the suit for the remaining area was decreed in favour of the petitioners and respondent No. 4 in equal-shares vide judgment and decree dated 25.1.1996. After a lapse of more than seven years on 28th July, 2003 respondent No. 1 Rana Mumtaz Ahmed filed an application under section 12(2) CPC in the Court of learned Civil Judge Faisalabad against the plaintiffs and defendants in the suit for setting aside of judgment and decree dated 25.1.1996 on the ground that it was obtained by misrepresentation and fraud. Learned Civil Judge, First Class, Faisalabad vide order dated 15.3.2005 set aside the judgment and decree of the Trial Court. At the same time learned Civil Judge ordered impleadment of respondent No. 1 Rana Mumtaz Ahmed as a party in the said suit”.

2. The points requiring consideration have been formulated in para 4 of the leave granting order which reads as under:

“4. We have heard the arguments of Syed Ali Zafar, ASC for the petitioners and have perused the record as well as the provisions of law applicable to the case and have come to the conclusion that the following questions require consideration and examination:

(i) whether the judgment and decree of the trial Court was obtained by way of fraud, mis-representation or want of jurisdiction making out a ground for entertainment of the application under Section 12(2) CPC;

(ii) whether in view of the provisions of section 27 of the Specific Relief Act the application under section 12(2) CPC was barred and ought not to have been entertained;

(iii) Whether the order passed by learned Civil Judge, Faisalabad allowing the application under section 12(2) CPC and setting aside the judgment and decree is not contrary to and in violation of section 27 of the Specific Relief Act;

(iv) Whether in deciding an application under section 12(2) CPC the learned Civil Judge, First Class, Faisalabad acted within jurisdiction to allow impleadment of respondent No. 1 as a party in the suit;

(v) whether by ordering impleadment of respondent No. 1 as a party in the suit, the learned Civil Judge, First Class revived the claim of respondent, Rana Mumtaz Ahmed to agitate his claim over the land in question which otherwise had become seemingly time barred; and

(vi) whether the judgment of the High Court suffers from non-consideration of above material questions.”

3. Civil Appeal No.2106/06: This appeal has arisen out of the judgment dated 9.5.2006 of the Lahore High Court whereby the learned Single Judge in its Chambers dismissed the revision petition filed by the appellant. Points raised and noted at the time of leave read as under:

“After hearing the learned counsel for the petitioner at length, leave to appeal is granted to consider; inter alia, whether the jurisdiction of the Civil Courts was ousted in terms of Section 14 of the Evacuee Trust Property (Management and Disposal) Act No.Xiii of 1975, unless order of the Chairman was shown to be patently void and without jurisdiction.”

4. The learned ASC appearing on behalf of the appellant in CA-1540/06 contended that where the application filed by respondent No.1 neither mentioned the source of knowledge nor explained the reasons of delay of each day in filing the petition, his application under Section 12(2) CPC was liable to be dismissed; that the respondent who also claimed to have entered into an agreement to sell with Ghani could not get anything out of the suit on reversal of the decree under Section 12(2) CPC when he never instituted a suit for specific performance of contract, the more so when it was not asserted that the appellants ever knew about the agreement dated 28.01.1990 and that in the absence of any allegation of fraud or misrepresentation or want of jurisdiction, application under Section 12(2) merited outright dismissal.

5. Learned ASC appearing on behalf of the respondents contended that where respondents were never served in accordance with the requirements of law any judgment and decree passed at their back could not stand, therefore, their application under Section 12(2) of the CPC was rightly allowed and that the judgment and decree of the High Court maintaining the same being free from any infirmity is not open to any exception.

6. Learned ASC appearing on behalf of the appellant in CA-2106/06 contended that where the property forming subject matter of the dispute was evacuee trust property, it could not have been allotted to anyone; that Ghani claimed this property on the basis of RL-II which appears to be bogus on the face of it. He next contended that if and when a question arises whether an evacuee property is attached to charitable, religious or educational trust or institution it shall be decided by the Chairman Evacuee Trust Property Board (ETPB) whose decision shall be final and shall not be called in question in any Court. He further contended that where the legislature has created a forum for deciding such question recourse must be had to that as jurisdiction of any other Court is expressly barred by Section 14 of Evacuee Tru st Property (Management & Disposal) Act. The learned ASC argued further that where the Chairman Evacuee Trust Property Board after taking cognizance of the matter and recording evidence of the parties came to the conclusion that the property forming subject matter of dispute is an evacuee trust property, its judgment being final could not be called in question in a Civil Court.

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