2022 C L C 830
[Balochistan]
Before Rozi Khan Barrech, J
MUHAMMAD NASEEM JAVED---- Petitioner
Versus
ANJUMAN- E-ASNA ASHRIA and another ----Respondents
Civil Revision No.212 of 2016, decided on 6th November, 2020.
(a) Civil Procedure Code (V of 1908) ---
----S.92 ---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Waqf Property--- Suit for
declaration, cancellation documents and permanent injunction---Failure to obtain permission
from Advocate General ---Effect ---Plaintiff assailed the dismissal of his suit for declaration,
cancellation of documents, permanent injunction and consequential relief ---Validity ---
Plaintiff had admitted that the property was actually Waqf property--- Relief claimed in the
suit fell within the scope of S.92, C.P.C., as such, permission from Advocate General was
required, which was not obtained--- Suit was not maintainable ---Revision petition was
dismissed.
(b) Civil Procedure Code (V of 1908) ---
----S.92 ---Public charities ---Scope ---Suit under S.92, C.P.C., is of special natur e which pre -
supposes the existence of a public trust of a religious or charitable character ---Object of S.92,
C.P.C., is to protect a public trust of a charitable and religious nature from being subjected to harassment by suits filed against them ---Public trust for charitable and religious purposes are
run for the benefit of the public ---No individual should take benefit from them ---Section 92,
C.P.C., has no application where the plaintiff does not sue to vindicate the right of the public but seek declarat ion of his individual or personal rights.
(c) Civil Procedure Code (V of 1908) ---
----S.92 ---Public charities ---Waqf property--- Scope ---Question, whether permission from
Advocate General under S.92, C.P.C., is required, can only be determined once it is established that the property with respect to which the suit has been filed is waqf property---
Where the Court holds on the basis of evidence that the property in question is waqf property and the relief sought by the plaintiff falls within the scope of Cls. (a) to (h) to subsection (i)
of S.92, C.P.C., the suit can be dismissed on the sole ground that the consent under S.92, C.P.C., was not obtained prior to the filing of the suit ---If on the other hand, the Court holds
that the property is not waqf property or that the relief prayed for does not fall within the
scope of S.92, C.P.C., then the consent under S.92, C.P.C., for filing a suit would not be
necessary.
(d) Civil Procedure Code (V of 1908) ---
----S.115--- Revision ---Scope ---High Court while exercising revisional jurisdiction is
supposed to make a comparative analysis of both the judgments in order to determine their
validity on the touchstone of S.115, C.P.C., but in the matter of giving preference to the judgments of lower courts, while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the appellate court, if those are not suffering from any legal infirmity.
Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs and
others 2013 SCMR 1300 rel.
Ahsan Rafiq Rana for Petitioner.
Muhammad Ayub, A.A.G. for Respondents.
Date of hearing: 15th September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .----This Civil Revision Petition No.212 of 2016 arises
out of judgment and decree dated 26.3.2016 (hereinafter "the impugned judgment") passed
by learned Additional District Judge -I, Quetta (hereinafter "the appellate Court") whereby
the learned appellate Court while allowing the appeal filed by respondent No.1 (appellant) set si de the judgment and decree dated 28.4.2015 (hereinafter "the judgment") passed by
learned Civil Judge -V, Quetta (hereinafter "the trial Court") and the suit filed by the
petitioner was dismissed.
2. Precisely the facts necessary for adjudication of the ins tant petition are that the
petitioner filed a suit for Declaration, Cancellation of Documents, Permanent Injunction and Consequential Relief before learned Civil Judge -V, Quetta with the following prayers: -
"a) Declaring that the Anjuman -e-Asna Ashria Hazara is real and Legal Name instead
of Deleted Name of Anjuman -e-Asna Ashria Mechongy Road, Quetta.
b) Declaring that the letter written by Director Industries -Cum -Provincial Registrar
Joint Stock Companies Balochistan, Quetta Dated 4th January 1983 is ill egal ultra
virus whereon the word HAZARA was deleted, and further to cancel the same.
c) Declare that the application written by the defendant No.1 to defendant No.2 dated 27-5-1990 for Re change of Registration Number and by the consequences of which
another Registration No. 508 dated June, 1990 was allotted to the Defendant No.1 is
also illegal and without any justification and reason.
d) An order of Permanent injunction may also please be passed against the Defendant
No.1 that not to Remove or Delete t he words Hazara written on the Plate of
Temporary lodging for pilgrimage which is located at the same premises Historically.
e) The order of Consequential relief may also be passed in the circumstances of the
case.
f) Any other relief which this Honerabl e Court think fit and proper may also be given
with he Cost of the suit."
3. The respondents resisted the suit, being defendants while submitting their written
statements, they controverted the assertions contained in the plaint. From the divergent pleadin gs of the parties, following issues were framed: -
"1 Whether suit of the plaintiff is not maintainable under res -judicata?
2. Whether the suit of plaintiff is time barred?
3. Whether correct name of the Imam Bargah is Anjuman -e-Asna Ashria Hazara Kalan
Mechongy Road, Quetta?
4. Whether the defendants have unlawfully changed the name of Imam Bargah in question?
5 Whether the plaintiff is entitled to the relief claimed for?
6. Relief?
4. After framing of issues, the learned trial Court recorded the evidence of both the sides
and finally decreed the suit of the petitioner on 28.4.2015. The respondent No.1 being dissatisfied from the judgment dated 28.4.2015 passed by learned trial Court, preferred an appeal before the learned Additional District Judge -I, Quetta, which was accepted vide
judgment and decree dated 26.3.2016 and resultantly suit filed by the petitioner was dismissed. Hence this petition.
5. I have heard the learned counsel for the parties and perused the available record with
their able as sistance.
6. The question issue which requires resolution by this Court is that whether the
permission from the Advocate General under section 92, C.P.C., was required to the petitioner to file the suit in hand and whether the property is not waqf property.
7. The suit under section 92, C.P.C., is of a special nature which pre -supposes the
existence of a public trust of a religious or charitable character. The object of section 92, C.P.C. is to protect a public trust of a charitable and religious nature from bei ng subjected to
harassment by suits filed against them. Public trusts for charitable and religious purposes are run for the benefit of the public. No individuals should take benefit from them. When the petitioner does not sue to vindicate the right of the public but seek a declaration of their individual or personal rights, section 92, C.P.C., has no application.
8. The question of whether permission from the Advocate General under section 92,
C.P.C., is required can only be determined once it is establish ed that the property with
respect to which the suit had been filed is waqf property. Where the court holds on the basis
of evidence that the property in question is waqf property, and the relief sought by the petitioner falls within the scope of clauses (a ) to (h) of subsection (i) of Section 92, C.P.C.,
the suit can be dismissed on the sole ground; that consent under section 92, C.P.C. had not
been obtained prior to the filing of the suit. If on the other hand the court holds that the
property is not Waqf property or that the relief prayed for does not fall within the scope of section 92, C.P.C., then the consent under section 92, C.P.C., for filing a suit would not be necessary.
9. In the case in hand, the suit property is waqf property. The respondent in their written
statement stated that "the Anjuman -e-Asna -e-Ashria Kalan Mechongy Road, Quetta was
made waqf by one Allama Sheikh Abdul Ali Mujtahid Harvi Tehrani son of Moulvi Abdul Qasim Qazalbash on 24.10.1922, through a registered waqf deed. The above me ntioned
Imam Bargah was made waqf by the above -named person for the purpose of Imam Bargah,
and other religious obligations for Shia community, and waqf deed was duly registered on 26.10.1922. The Waqf in his waqf Nama laid down scheme of the management of the
property and also the manner of replacement and substitution of its committee members, so the said Allama appointed a committee of ten notable of Shia community, five belonging to Hazara community and five to none Hazara community. The above mentioned Imam Bargah
was made waqf by the above -named person for the purpose of Imam Bargah and other
religious obligations for Shia community, and waqf deed was duly registered on 26.10.1922."
10. The witness of the petitioner, namely Hassan Ali appeared as PW -2 stated during
cross -examination that Imam Bargah is waqf property. The petitioner did not dispute the said
property, and he admitted that the property is factually waqf property.
In such circumstances, the relief claimed in the suit fell within the scope of section
92, C.P.C., permission from Advocate General was required, but in case in hand the petitioner had not been obtained any permission from AG prior to the filing of the suit and it was incumbent upon the petitioner before filing of the suit to obta in permission from AG
Balochistan, as such, the suit of the petitioner was not maintainable on this sole ground.
11. Though there are conflicting views of both the Courts below and this Court while
exercising revisional jurisdiction is supposed to make a c omparative analysis of both the
judgments in order to determine their validity on the touchstones of section 115 of the Code of Civil Procedure (V of 1908), but in the matter of giving preference to the judgments of learned lower Courts while analyzing the same in exercise of revisional jurisdiction, the
preference and regard are always given to the findings of the learned appellate Court, if those are not suffering from any legal infirmity. Preference in this respect can safely be made to the case of Muham mad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs
and others 2013 SCMR 1300. The relevant extract from the same is reproduced herein below: -
"12….. We have also taken into consideration the judgment of the appellate court which is based on p roper appraisal of evidence on record and the findings of the
appellate Court are to be preferred as it has been held by this Court in the cases of
Madan Gopal and others v. Maran Bepari and others PLD 1969 SC 617 that if the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. "This view also finds support from the cases of
Muhammad Shaft and ot hers v. Sultan Mahmood and others 2010 SCMR 827".
As a sequel of the above discussion, it can safely be held that the learned Additional
District Judge -I, Quetta, has rightly interfered with the judgment passed by the learned Civil
Judge -V, Quetta. The pe titioner has failed to point out any illegality or material irregularity
in the judgment passed by the appellate Court, warranting interference by this Court in the
exercise of revisional jurisdiction. The instant petition thus fails and is dismissed with no
order as is costs.
SA/3/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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