P L D 2024 Balochistan 30
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
HAIDER KHAN ---Petitioner
Versus
SHER KHAN and 3 others ---Respondents
Constitution Petition No. 1076 of 2020, decided on 21st September, 2022.
Balochistan Civil Disputes (Shariat Application) Regulation, 1976---
----S. 2---Constitution of Pakistan, Arts. 246 & 247 [as amended through Constitution
(Twenty -Fifth Amendment) Act (XXXVII of 2018) ---Balochistan Civil Courts Ordinance (II
of 1962), Preamble ---Civil Procedure Code (V of 1908), O. VII, R. 10--- Notification No.240/
RHC/JM/2019 dated 10 -10-2019 issued by the Balochistan High Court ---Civil suit filed by a
private person where Government is also a party (to the suit) ---Maintainability ---Suit filed by
the plaintiff/ petitioner was returned under O. VII, R. 10 of the Civil Procedure Code, 1908, by the Court of Qazi under S. 2 of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 ('the Regulation, 1976'), which order was maintained by the Appellate Court ---Validity ---Record revealed that both the Courts below, while not entertaining his
claim, had not referred to (suggested) to the petitioner the competent Court having
jurisdiction ---In the earlier scheme of the Regulation, 1976 where the government
functionary was a party to a lis, the Court having jurisdiction was Court of Civil Judge but
after promulgation of Constitution (Twenty- Fifth Amendment) Act, 2018, Art. 246 of the
Constitution was inserted/amended, whereby the tribal areas were merged into respective provinces ---Regulation, 1976 was applicable in tribal areas of Balochistan, but after the
Constitution Twenty -Fifth Amendment, the tribal areas had been merged and made part of
the Province of Balochistan, hence the tribal areas were no more in existence ; powers enjoyed by the President of Pakistan in case of Federally Administrated Tribal Areas ('FATA') and the Governor of Balochistan in case of Provincially Administrated Tribal Areas ('PATA') were no more available to them under Art. 247(4) of the Constitution ---In view of
Notification No. 240/RHC/JM/2019 dated 10- 10-2019 issued by the Balochistan High Court,
the litigations pending before the Qazi Courts and Member Majlis -e-Shoora exercising
jurisdiction under the Regulation, 1976, stood transferred to the Civil Courts having original jurisdiction constituted under the Balochistan Civil Courts Ordinance, 1962---Matters related to the civil disputes were to be adjudicated by the Civil Courts constituted under the Balochistan Civil Courts Ordinance, 1962, thus the petitioner having any civil dispute regarding property might approach a Civil Court having ordinary jurisdiction---Constitutional petition was disposed of accordingly.
Naimatullah v. Faizullah (C.R.P. No.209 of 2011) ref.
Siraj Ahmed for Petitioner.
Mehrullah Khan Kakar for Respondents.
Nusrat Baloch, A.A.G. for Official Respondents.
Date of hearing: 23rd August, 2022.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Before us, the petitioner has brought the
captioned petition seeking annulment of the order dated 27th April, 2018 ("Impugned order")
rendered by learned Qazi Musakhail ("Trial Court"), whereby, the plaint was returned to the petitioner under Oder VII Rule 10 of Code of Civil Procedure, 1908 ("C.P.C."), which was endorsed and upheld on 01st March, 2019 by learned Members Majlis -e-Shoora, Musakhail
("Appellate Court").
2. Suit was filed by the petitioner before the learned Trial Court regarding a property
bearing Khatooni No.40/44, Khata No.4 measuring 9 Rod 14 pole situated at Mouza Talli Halqa Sadar, against the defendants including revenue department, which was returned under Oder VII Rule 10 of CPC to the petitioner on the ground that under section 2 of the Balochistan Dispute Shariat Application Regulation, 1976 ("Regulation of 1976") the court of Qazi cannot entertain a suit where Government is a party. In appeal filed by the petitioner the appellate Court on 01st March, 2019 upheld the order dated 27th April, 2018 ibid. Hence this petition.
3. Learned counsel for the petitioner inter alia contended that various applications filed
by the petitioner before revenue authorities and the before the Court of learned Qazi have
been returned to approach the proper forum, thus if any order is made to determine the forum, he would be satisfied and guided. Conversely, the learned counsel for the private respondents contended that the petitioner has been dragging the respondents in various fora without any right and legal justification, as such, requested for dismissal of the petition. Learned AAG also requested for dismissal of the petition on the ground that the both the courts below have rightly returned the plaint.
4. We have cautiously and carefully examined the record in view of the contentions of
adversarial parties. The learned Qazi while returning the plaint though referred to section 2 of the Regulation of 1976, but did not suggest the court of competent jurisdiction. Similarly, the learned Appellate Court while upholding the order of the learned Trial Court also did not refer to the competent court, having jurisdiction. Obviously, in the earlier scheme of Regulation of 1976, where the government functionary was a party to a lis, the court, having jurisdiction was a court of Civil Judge, but after promulgation of Twenty- fifth Amendment
Act No. XXXVII of 2018, Article 246 of the Constitution of Islamic Republic of Pakistan, 1973 was inserted and amended, whereby the tribal areas were merged into respective provinces.
Regulation of 1976 was applicable in tribal areas of Balochistan, but after the
amendment ibid, the tribal areas have been merged and made part of the province of
Balochistan, henceforth, the tribal areas are no more in existence. The powers enjoyed by the
President of Pakistan in case of Federally Administered Tribal Areas ("FATA") and the Governor of Balochistan in case of Provincially Administered Tribal Areas ("PATA") are no more available to them under Clause 4 of Article 247 of the Constitution. In this regard reference can be made to a judgment rendered by this Court in C.R.P. No.209 of 2011
"Naimatullah v. Faizullah".
5. In view of the above, vide Notification No.240/RHC/JM/2019 dated 10th October
2019 of this Court, the litigations pending before learned Qazi Courts and learned Member
Majlis -e-Shoora, exercising jurisdiction under the Regulation of 1976 stood transferred to the
Civil Courts having original jurisdiction constituted under the Balochistan Civil Courts Ordinance, 1962.
6. Upshot of the above discussion is that the matters related to the civil disputes are to
be adjudicated by Civil Courts constituted under the Balochistan Civil Courts Ordinance, 1962 and, as such, the petitioner having any civil dispute regarding property may approach a Civil Court, having ordinary jurisdiction.
In light of above, the petition being bereft of merits is dismissed with no order as to
cost.
MQ/51/Bal. Petition dismisseThis 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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