Fazal Khaitab Vs Govt. of NWFP and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

1.C.R No. 1212-P/2010 (Fazal Khitab Versus Govt. of NWFP and others) Present: Mr. Sabir Shah, Advocate for petitioner.

Mr. Haq Nawaz Khan A.A.G. for official respondents.

Nemo for private respondents.

2.C.R No. 379-M/2011 (Govt. of KPK and others Versus M. Amin through LRs and others) Present: Mr. Haq Nawaz Khan A.A.G. for petitioners.

Mr. Salman Zubair, Advocate for respondents.

3.C.R No. 47-M/2019 (Mst. Alia Khisro Versus Azim Khan and others) Present: Muhammad Ikram Khan, Advocate for petitioner.

Mr. Haq Nawaz Khan A.A.G. for official respondents.

Muhammad Riaz Muhammadzai, Adv. for private respondents.

4.C.R No. 49-M/2019 (Mst. Alia Khisro Versus Gul Khan and others) Present: Muhammad Ikram Khan, Advocate for petitioner.

Mr. Haq Nawaz Khan A.A.G. for official respondents.

Muhammad Rashid and Muqadar Khan, Advocates for private respondents.

5.C.R No. 50-M/2019 (Mst. Alia Khisro Versus District Revenue Officer and others) Present: Muhammad Ikram Khan, Advocate for petitioner.

Mr. Haq Nawaz Khan A.A.G. for official respondents.

Muhammad Riaz Muhammadzai, Advocate for private respondents.

6.W.P No. 314-M/2025 (Alia Khisro Versus Govt. of KPK and others) Present: Mr. Abdul Qayum, Advocate for petitioner.

Mr. Haq Nawaz Khan A.A.G. for official respondents.

Mr. Ahmad Ali, Advocate for private respondents.

Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

7.W.P No. 47-M/2025 (Nawab Zada Muhammad Karim Khan another Versus Govt. of KPK and others)

Present: Mr. Ahmad Ali, Advocate for petitioners.

Mr. Haq Nawaz Khan A.A.G. for official respondents.

Mr. Ihsan Ullah, Advocate for private respondents.

Date of hearing: 22.05.2025 & 26.05.2025

Date of announcement: 26.05.2025

J U D GM E NT

QAZI JAWAD EHSANULLAH, J.- This common judgment shall dispose of the instant C.R No. 1212-P/2010 as well as the connected petitions as in all these cases the plaints have either been returned or rejected by invoking Paragraph 7 of Devolution and Distribution of Property (Dir and Swat) Regulation, 1972 generally known as Martial Law Regulation No. 122 (MLR-122) or Paragraph 3 read with Paragraph 6 of Settlement of Immovable Property Disputes (Dir and Swat) Regulation 1972 commonly called as Martial Law Regulation No. 123 (MLR-123). While deciding all these matters (except C.R No. 379-M/2011)1,it has been held in the judgments impugned before this court that civil courts do not possess jurisdiction to adjudicate upon the lis brought before the court below and this particular opinion the courts below have In this petition, the concurrent findings and decree of the two courts below have been assailed. The learned A.A.G. has raised a preliminary objection that the civil court lacked jurisdiction to adjudicate the matter as it fell within the ambit of MLR-122 and 123. This objection will be addressed in the later part of this judgment.

Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

formed by applying the ouster of jurisdiction clauses as contained in MLR-122 and MLR-123 ibid.

2.In order to embark upon the determination of the core issue relating to the jurisdiction of the civil Court, which in these matters has consistently been held to be ousted, it is essential to keep in mind the context in which successive legal developments emerged following the ceding of the former States of Dir and Swat, and the manner in which the Provincial Government endeavored to resolve disputes concerning ownership of properties situated in these erstwhile princely States.

3.Pursuant to the merger of the former princely States of Dir, Chitral and Swat into Pakistan through promulgation of the Dir, Chitral and Swat (Administration) Regulation, 1969 [West Pakistan Regulation No. I of 1969], various issues arose concerning identification of personal properties of the former rulers, the Government of West Pakistan and private persons.

To address these issues, the Devolution and Distribution of Property (Dir and Swat) Regulation, 1972 [Martial Law Regulation No. 122] was enacted, which provided for the establishment of the Dir-Swat Land Dispute Enquiry Commission (Commission), appointed by the Provincial Government vide Notification No. 66 S.O. (SPL)/H.D./70, Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

dated 8th October, 1970. The mandate of this Commission, as prescribed in paragraph 3 of MLR-122, was to inquire into:

a) What property is the State Property of the former State of Dir and Swat respectively;

b) What property is the private property of the late Nawab Sir Sheh Jehan Khan, ex-Ruler of the former State of Dir, and late Sir Abdul Wadud Mianl Gul Sahibzada, K.B.E., Badshsah Sahib of the former state of Swat, respectively;

c) The respective shares of the various heirs of the aforesaid two ex-Rulers in their personal or private property.

Paragraph 4 of MLR-122 further stipulated that, once the Commission had made its determination, the property falling under clause (a) above would vest in the Provincial Government, whereas the personal or private property of the two ex-Rulers would devolve upon and be distributed amongst their respective legal heirs in accordance with the said Order.

Paragraph 5 of MLR-122 provided that in respect of any property not covered by an order under paragraph 3 ibid, if a question arose as to whether such property was the personal or private property of the ex-Ruler or constituted State Property, the matter was to be decided by the Provincial Government.

Finally, paragraph 7 of MLR-122 contained an ouster of jurisdiction clause in the following terms:

“7. No Court shall call in question or permit to be called in question any action taken or order made under this Regulation.”

Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

4.Following the mandate of paragraph 3 of MLR-122, the Commission inquired into the matter and issued declarations on the specified terms, which were given effect to and duly notified vide Notification No. IO/16-SOTA-II/HD/72-1525 dated 29th September 1972 and Notification No. IO/16-SOTA- II/HD/72-1526 of even date. Through these Notifications, the State Properties and those owned by the ex-Rulers were duly identified and formally declared as such in the Schedules annexed thereto. Schedule I attached to the Notification enumerated the properties declared to vest in the Provincial Government, whereas Schedule II specified those properties belonging to the ex-Ruler(s). Similarly, the private properties of ex-Ruler of Swat were notified separately vide Notification No. 10/16-SOTA-II/72-1523 dated 15th September 1972.

5.In order to further resolve the disputes concerning ownership of and interests in immovable properties in the two former States, the Settlement of Immovable Property Dispute (Dir and Swat) Regulation, 1972 [Martial Law Regulation No.

123] was promulgated and notified on 12.04.1972. Paragraph 3 of this Regulation specifically provided as follows;

“3. (1) All disputes relating to the ownership of, or any right or interest in, any immovable property in the former States of Dir and Swat to which any of the following persons are parties; shall be decided by the Provincial Government or Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

an officer authorized by it in this behalf, namely:--

(a)the tenants and ex-Rules of the said former States or their respective heirs; or (b) claimant landlords and the ex-Rulers of the said former States or their respective heirs; or

(c)the landlords and tenants.”

Sub-clause (3) of Paragraph 3 above had also provided for an ouster of jurisdiction clause which reads as follows;

“(3) No Court or other authority shall entertain any proceedings in relation to any dispute referred to in sub-paragraph (1) nor shall any Court or other authority grant an injunction or make an interim order in relation to any such dispute.”

It is evident from the plain reading of the afore-quoted paragraphs of MLR-123 that this provision specifically deals with and ousts the jurisdiction of all other courts in matters where a “dispute” has arisen between the parties specified therein. The definition clause 2(b) of the said MLR further clarifies the scope of the term “dispute”, setting it out in the following express terms;

“2. In this Regulation, unless the context otherwise requires, ----

(a)....................

(b)‘Dispute’ means a dispute inquired into by the Commission and for the determination whereof it has made a recommendation in its report”.

Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Additionally, Paragraph 6 of MLR-123 deals with the exclusivity of jurisdiction and the overriding effect of actions taken under the Regulation. It provides:

“6. (1) Save as provided in paragraphs 4 and 5, no Court or other authority shall call in question, or permit to be called in question, any action or decision taken or order passed under this Regulation.

(2)All suits, appeals and applications pending in any Court or before other authority immediately before the commencement of this Regulation in respect of any dispute of the nature referred to in sub-paragraph (1) of paragraph 3 shall, in so far as they relate to such dispute, abate forthwith”.

6.As a matter of record, it is the above referred paragraphs of MLR-122 and-123 supra and ouster of jurisdiction clauses which in cases before this court have been pressed into service by the courts below in the impugned judgments. Now before one proceeds further to adjudge the legality of the impugned orders by looking into the correct application of above ouster clauses to the facts and circumstances of each case, it may be observed that any such clause which takes away the jurisdiction of a Court of plenary jurisdiction is to be construed very strictly and such ouster is not susceptible to any intendment or interpretation.

The facts of each case must squarely and plainly come within the mischief of ouster, only then it could be safely held that civil courts did not have the jurisdiction and not otherwise. Consequently, in order to attract the bar of Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

jurisdiction and ouster or exclusivity of jurisdiction conferred upon the forum created under MLR-122 a notification issued by the Provincial Government in terms of Paragraph 3 or 4 ibid or any order of the authorities specified in paragraph 6 and 6A must be under challenge;

no court could then take cognisance of such matter.

Likewise, for bar of jurisdiction as envisaged in paragraph 3(3) of the MLR-123 to apply, following pre-conditions must co-exist namely;

i)The cause agitated by a relator is with regard to a ‘dispute’ as defined in paragraph 2(b), that is to say the issue must have been inquired into by the Commission and for the determination whereof it has made a recommendation in its report; and

ii)The said “dispute” must have arisen either between (a) tenants and ex-Rulers or their heirs;

(b)claimant landlords and ex-Rulers or their heirs; and (c) landlords and tenants.

In any other case, where the matter in issue is neither a “dispute” or that it has not arisen between any of the above parties, no ouster of jurisdiction from MLR can be stretched to hold that civil courts did not have the jurisdiction.

7.As a sequel to the foregoing discussion, the implication of above litmus test is to be applied upon the facts and circumstances of each case so as to examine whether bar / Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

ouster of jurisdiction clauses of MLR-122 and 123 have been correctly applied in all these petitions. Therefore, peculiar facts of each petition before this court are taken and their fate is separately decided as below;

i)C.R No. 1212-P/2010: In the instant case, Fazal Hetab alias Fazal Khitab, predecessor of the petitioners Gul Jamal and others, instituted Civil Suit No. 144/1, on 11.11.1992, against the official respondents (Government of Khyber Pakhtunkhwa, etc.) and certain private parties, seeking a declaration of ownership over the suit land fully described in head note Alif of the plaint. He also sought perpetual injunction and cancellation of revenue entries existing in favour of the defendants. The plaintiff contended that the suit property comprised both ancestral and purchased land, which devolved upon him and his brother after the death of his predecessor and was subsequently allotted to him through partition. He alleged that the defendants, in collusion with revenue officials, managed to have the suit land fraudulently entered in their names without his knowledge, warranting cancellation of such entries. He further claimed that the suit land was never the subject of any prior proceedings before the Land Commission.

The official defendants No. 1 to 9 contested the suit, asserting that the property in question had been declared the Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

ownership of the ex-Ruler of Swat, Badshah Sahib, through Notification No. 10/16-SOTA-II/72-1525 dated 29.09.1972, and was temporarily vested in the Provincial Land Commission. Legal heirs of Badshah Sahib (defendants No.

10 to 19) filed a separate written statement supporting the stance of the official defendants and further contended that the documentary evidence produced by the plaintiff did not pertain to the suit land.

From amongst the remaining private defendants No. 20 to 75, defendants No. 22, 23, 40 to 46, and 48 to 57 jointly filed a written statement refuting to the plaintiff’s claim. They asserted that the land originally belonged to their common predecessor, Kand Khan, but was later taken over by Badshah Sahib, the then Ruler of Swat. Following the merger of Swat State into Pakistan, the Land Commission, acting upon the recommendations of the Land Inquiry Commission, declared the property as belonging to Badshah Sahib via the aforementioned notification. They added that subsequently, the Federal Land Commission, under MLR-123, issued a decree in favour of their predecessor, which led to the revenue entries of the land in their names.

The trial court framed issues and recorded pro and contra evidence. After addressing the merits of the case, the trial court returned the plaint vide judgment dated 30.05.2006, Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

directing the plaintiff to approach the appropriate forum. The appellate court, in its judgment dated 15.12.2009, concurred with the decision regarding return of the plaint but held that the trial court had erred in discussing the merits when the plaint was ultimately being returned, leading to the filing of the instant petition.

In this case, the learned trial court had returned the plaint filed by the petitioners/plaintiffs with a direction to seek remedy before the appropriate forum. However, while doing so, the trial court also proceeded to discuss merits of the case.

The learned appellate court disagreed with the trial court's observations on merits and upheld the judgment only to the extent of return of the plaint. A bare reading of the plaint as well as its prayer clearly shows that suit of the petitioners is not covered by the definition of “dispute” in terms of MLR 123 because in his suit the petitioner is seeking a declaration of title over the suit property on the basis of inheritance as well as purchase. He in his plaint avers that suit property does not form part of notification and declaration issued under MLR 122. It is rather the defence plea of the respondents that the property is notified one under the said MLR but while examining the jurisdiction of a court in terms of Order VII Rule 10 and 11 of the Civil Procedure Code, 1908 it is the contents of the plaint which are relevant and not the plea taken Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

in written statement. Thus, in view of the peculiar averments made in the plaint ouster of jurisdiction clauses of MLR 122 and 123 are held to have been irrelevant and civil court being the court of ultimate jurisdiction is found to be well within its powers to examine the case and decide it on merits.

Consequently, on acceptance of C.R No. 1212-P/2010, the impugned judgment dated 15.12.2009 passed by the learned Additional District Judge-VII/Izafi Zilla Qazi, Swat is hereby set aside and the case is remanded to the said appellate forum for a decision on the petitioners’ appeal strictly on merits, after affording fair opportunity of hearing to both sides. It is clarified that the petitioners' appeal shall be deemed to be pending before the said forum, which the appellate court shall decide as expeditiously as possible but not later than 4 months from the receipt of this judgment. While deciding the appeal, on merit even, the learned appellate court would not be precluded to see as to whether the property forming subject matter of the suit is amongst those which are notified properties in any one of the Schedules attached to Notification No.IO/16-SOTA-II/HD/72-1525 dated 29.09.1972. In that case, it can always make a declaration in accordance with law and decide the suit upon proper appreciation of evidence.

II. C.R No. 379-M/2011: This revision petition has been filed by the Government of Khyber Pakhtunkhwa and eight Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

others to assail the judgment and decree dated 29.06.2011 passed by the learned Additional District Judge, Swat, whereby the appeal of the petitioners was dismissed, thereby affirming the judgment and decree dated 31.05.2010 of the learned Senior Civil Judge, Swat through which the suit of the plaintiffs was concurrently decreed.

Briefly stated, the original plaintiff, Muhammad Ameen (predecessor of respondents No. 1/1 to 1/3), instituted Civil Suit No. 91/1, on 06.02.1987, against the present petitioners and defendants No. 11 to 43, seeking declaration in respect of land measuring 28 Kanals and 9 Sersai, comprising Khata No.

1, Khatooni No. 153 Khasra Nos. 146, 147 and 148 as per Jamabandi for the year 1985-86. He claimed part of the suit land as his proprietary right by purchase and the remaining portion as inherited from his predecessor. The plaintiff impugned revenue entries allegedly made illegally by defendants No. 3 to 6 in favour of defendants No. 13 to 43. He further contended that Gazette Notifications No. 10/16-SOTA- II/72-1525 dated 29.09.1972 and No. 10/16-SOTA-II/72-1523 dated 15.09.1972 did not affect his proprietary rights, asserting that the suit land neither formed part of the ownership of the former Ruler of Swat (Badshah Sahib) nor had it been the subject of any proceedings before the Land Commission.

Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

The suit was contested only by the present petitioners, who filed their written statement primarily relying on Notification No. 10/16-SOTA-II/72-1525 dated 29.09.1972.

They contended that at the time of settlement, defendants No.

13 to 43 were co-sharers with the Provincial Land Commission in the suit property. After framing of issues and recording of evidence from both sides, the learned trial court decreed the suit of the plaintiff as prayed for vide judgment / decree dated 31.05.2010. Said decree was upheld in appeal by the learned Additional District Judge on 29.06.2011.

Consequently, the petitioners have preferred Civil Revision No. 379-M/2011.

In this case too, Mr. Haq Nawaz Khan, learned Additional Advocate General, representing the petitioners, has raised a preliminary plea of bar of jurisdiction and has argued that his objection on the ouster of jurisdiction in terms of MLR 122 and 123 be decided first.

Since plaintiff Muhammad Amin (now represented by his legal heirs) is raising a claim of title and is seeking a declaration that he is the owner of suit property and that Notifications and declarations issued under the MLR did not affect the property sought to be claimed as his ownership. For proper understanding of his cause, the relevant Para 4 of his plaint is reproduced herein below:

Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

دعوی کا ٰ یہ کہ نوٹیفیکیشن مندرجہ عنوان عرضی:۔ ا4 پر نہیں ہوگا۔ اطالق جائیداد متدعویہ یا مدعی یہ کہ نوٹیفیکیشنزمندرجہ باال کے اجراء و اشاعت سے:ب متدعویہ قبل یا اُسکے بعد نہ تو اراضیات سابقہ بادشاہ صاحب ریاست سوات کی ملکیت باقبضہ رہی ہے۔ نسبت مارشل الء ریگولیشن نمبر نہ ہی اُسکے کے تحت کوئی مقدمہ ہوا ہے۔ اور نہ ہی ایسے123 کوئی مقدمہ میں مدعی کو باوجود قبضہ و ملکیت کے فریق مقدمہ بنایا گیا ہے۔

Therefore, just like in the case decided in the preceding paragraph, the objection of learned AAG representing the petitioners is overruled. Office is directed to refix this CR at an early date immediately after summer vacations with due notice to the respondents for arguments on merits of the case.

III-IV. C.R No. 47-M/2019 and C.R No. 49-M/2019:

The present revision petition arises out of the judgment dated 15.11.2018 passed by the learned Additional District Judge, Dir Upper, whereby the petitioner’s appeal was dismissed and the order dated 26.08.2017 of the trial court, returning her plaint for want of jurisdiction, was upheld. Succinctly, the petitioner, being the daughter of the former Ruler of Dir Muhammad Shah Khisro Khan, instituted Civil Suit No.

103/1, on 14.09.2015, against the respondents/ defendants.

She claimed that the suit property was declared to be the ownership of Nawab Shah Khisro through a Notification issued under MLR-122. Thereafter, the property came into the share of her mother Mst. Khaista Jana Balqis Khisro, who Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

subsequently gifted the same to the petitioner. It was her stance that the defendants have no legal nexus or concern with the suit land. The suit was contested by two sets of defendants:

defendants No. 1 to 5 filed a joint written statement, while defendants No. 6 to 10 submitted their separate response in the proper form of pleadings. Both groups of defendants resisted the suit on various factual and legal grounds. After hearing arguments on the question of jurisdiction and maintainability, the learned trial court returned the plaint vide order dated 26.08.2017. The said order was upheld in appeal by the learned Additional District Judge through judgment dated 15.11.2018, prompting the filing of Civil Revision No. 47-

M/2019.

In CR No. 49-M/2019 the dispute pertains to Civil Suit No. 93/1 filed, on 16.07.2016, by the present petitioner, against the respondents/defendants regarding a parcel of land upon which the official defendants were constructing a school. The petitioner claimed ownership of the suit land on the basis that it had been declared as part of the property of her father, Muhammad Shah Khisro, the former Ruler of Dir, through a Notification issued under MLR-123, along with other lands. Upon appearance before the trial court, defendant No. 1 submitted a separate written statement, while the official respondents also filed their written Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

statement contesting the petitioner’s claim. They asserted inter alia that the disputed land had been provided to the official defendants through an agreement dated 25.03.2015 for a public purpose, namely the construction of a primary school which was subsequently upgraded. After hearing arguments on the point of maintainability, the learned trial court returned the plaint under Order VII Rule 10 CPC.

This order was upheld by the appellate court through judgment dated 15.11.2018, resulting in the filing of Civil Revision No. 49-M/2019.

Both these petitions have been filed by

plaintiff/petitioner Mst. Alia Khisro, whose civil suits No.

193/1 of 2015 and 93/1 of 2016 were returned under Order VII Rule 10 CPC by Civil Judge-I and Civil Judge-II, Dir Upper, vide orders dated 26.08.2017 and 24.05.2016, respectively.

Her appeals (Civil Appeals No. 14/14 of 2017 and 13/14 of 2016) were dismissed by the learned Additional District Judge-I, Dir Upper, through separate judgments dated 15.11.2018. As peculiar facts and circumstances of the case are such that in Suit No. 103 the petitioner is asserting her right / title in the suit property stated to have been derived from Mst. Khaista Jana Balqis Khisro by way of a gift.

Likewise, in Suit No. 93/1 she is contesting the claim of the official respondents regarding construction of a public school Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

in the suit property which the latter are claiming to have been appropriated by the owners through agreement dated 25.03.2015. So, in both these cases, the cause of action is not the one where any of the actions / orders / notifications issued under MLR-122 is under challenge and / or a dispute between the parties specified in paragraph 2(b) and 3 of the MLR 123 is being litigated upon. Therefore, in light of the preceding discussion, the concurrent findings of both courts below are not sustainable and are accordingly set aside. The suits shall be deemed pending before the respective trial courts, who shall proceed on to decide the same on merits, in accordance with law, after recording evidence of the parties. The revision petitions are disposed of accordingly.

V. C.R No. 50-M/2019: This petition, also filed by Mst.

Alia Khisro, one of the plaintiffs assailing the concurrent orders/judgments dated 24.05.2016 and 15.11.2018 of the trial and appellate courts, whereby the plaintiffs’ suit was returned under Order VII Rule 10 CPC.

The factual matrix of the case largely mirrors the same position as it obtains around the connected CR No. 49- M/2019, with the only distinguishing features being the set of defendants involved and the nature of the public project. In this instance, the land in dispute had been earmarked for the construction of a government hospital, which the official Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

respondents are claiming to have been appropriated to them by the owner through some contractual arrangement challenged by the petitioner Mst. Alia in her suit. This petition too merits acceptance owing to identical factual and legal position as it obtains in CR No. 49 decided above. Therefore, in light of the preceding discussion, the concurrent findings of both courts below are found not sustainable and are accordingly set aside.

The suit shall be deemed pending before the respective trial courts, who shall proceed on to decide the same on merits, in accordance with law, after recording evidence of the parties.

VI-VII. W.P No. 314-M/2025 & W.P 47-M/2025: These petitions arise out of the same judgment dated 05.12.2024 passed by the learned Additional District Judge-III, Dir Upper, whereby revision petition filed by the official respondents was allowed, and their application under Order VII Rule 10 CPC was accepted. As a result, the ejectment petition of respondents No. 13 and 14 was returned for want of jurisdiction.

In WP No. 314-M/2025 respondents No. 14 and 15 initially filed an ejectment petition against respondents No. 1 to 9. Subsequently, the present petitioner and the remaining respondents were impleaded as parties. In response, the petitioner along with respondents No. 10, 11 and 13, being co- owners, filed a written reply supporting the stance of the Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

original petitioners (respondents No. 13 and 14). Issues were framed and the parties were directed to lead their respective evidence. However, during the pendency of the proceedings, respondents No. 2 to 4 filed an application under Order VII Rule 10 CPC read with MLR-123, seeking return of the ejectment petition for want of jurisdiction. Said application was dismissed by the Rent Controller vide order dated 28.03.2024. Aggrieved, respondents No. 1 to 7 challenged the dismissal order through a revision petition, which was allowed by the appellate court vide judgment dated 05.12.2024. It was held that the Rent Controller lacked jurisdiction in view of the bar under MLR-123, and accordingly, the ejectment petition was ordered to be returned for presentation before the appropriate forum. Hence, the filing of the instant constitutional petition.

Likewise, WP No. 47-M/2025 also arises out of the same judgment dated 05.12.2024 passed by the learned Additional District Judge-III, Dir Upper. The present petitioners were the original applicants in the ejectment proceedings and are arrayed as respondents No. 14 and 15 in the previously mentioned writ petition (W.P 314-M/2025).

Since the factual background, procedural history, and legal issues involved have already been detailed in the preceding Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah

petition, the same may be read as an integral part hereof to avoid repetition.

As is quite evident from the pleadings, these two cases are simple rent matters where ejectment petitions have been filed before the Rent Controller by the stated landlord against tenants (as the former claim). The dispute that is being sought to be resolved in these two cases is between the stated landlord and tenant and like rest of the case it nowhere questions legality of any action taken pursuant to MLR 122 or it seeks resolution of dispute as covered by MLR 123 and that too between the parties highlighted in the preceding part of this judgment. Resultantly, the impugned orders of returning the ejectment petitions to the petitioner for presentation before another forum are not found correct in law and are thus set aside. Accordingly, both petitions are allowed, the impugned judgment is set aside, and the ejectment petition shall be deemed pending before the learned Rent Controller, who shall decide the same on merits after recording evidence of the parties.

An no unc ed Dt:26.05.2025 Sd/-

JUDGE

Tajamul/CS* Hon’ble Mr. Justice Qazi Jawad Ehsanullah