Sadar Shaheed Vs Government of Khyber Pakhtunkhwa through Secretary Mines and Minerals Department and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

C.R No. 23-D/2026 with C.M No. 23-D/2026

Sadar Shaheed

Versus

Government of Khyber Pakhtunkhwa through Secretary Mines and Minerals Department and others

Date of hearing: 11.03.2026

JUDGMENT

SADIQ ALI, J.-

1.Through this Civil Revision Petition under Section 115 Code of Civil Procedure, 1908, (Code), the petitioner has called in question the findings recorded by the learned Civil Judge-IV, D.I.Khan, vide order dated 20.02.2025, whereby the suit for declaration cum perpetual mandatory injunction was returned under Order VII Rule 10 of the Code, as well as the judgment dated 06.01.2026 passed by the learned Additional District Judge-V, D.I.Khan, whereby the appeal preferred by the petitioner was dismissed.

2.Brief facts of the instant Civil Revision Petition are that the petitioner filed a suit for declaration-cum-perpetual

mandatory injunction respondents. The petitioner’s grievances are that the respondents issued the notices/office orders dated 16.01.2020 to the petitioner in respect of illegal excavation or mining and consequent assessment/recovery of amount under the relevant provisions of the Khyber Pakhtunkhwa Mines and Minerals Act, 2017. On being summoned, the respondents appeared and filed written statement coupled with an application for rejection of plaint. After hearing learned counsel for the parties, learned trial court found the suit to be not maintainable being ouster of jurisdiction and accordingly returned the plaint under Order VII Rule 10 of the Code. Felt aggrieved, the petitioner filed the appeal before the Additional District Judge-VIII, D.I.Khan which was dismissed vide judgment dated 06.01.2026. However, in para 7 of the judgment it is held that civil Court has no power to issue any direction to any appellate authority established under a special law therefore any order/direction or anything in the order creating the impression of direction to the appellate authority are of no legal effect. The petitioner has now challenged the said judgment by way of this revision petition.

3.Arguments heard. Record perused.

4.The petitioner filed a suit for declaration and permanent injunction challenging an assessment notice and office order dated 16.01.2020. The petitioner alleged that the assessment notice was not only factually incorrect but was the

result of mala fide exercise of power, issued by an authority (Monitoring and Surveillance Unit) not empowered as a "Licensing Authority" under the Khyber Pakhtunkhwa Mines and Minerals Act, 2017. It is precise stance of the petitioner that the impugned notices were not issued by the "Licensing Authority" as defined in the Act, making the action coram- non-judice. The plaint contains specific attributions of malice and ill-will, which, if proven, vest the Civil Court with jurisdiction regardless of a statutory bar. The courts below failed to examine the "nature of the dispute" in its true perspective, focusing blindly on the ouster clause. Reliance is placed on the case reported as 2022 S C M R 584 [Supreme Court of Pakistan] Messrs Mardan Ways SNG Station Versus General Manager SNGPL and others, it was observed that:

7.With regard to bar of jurisdiction contained in any statute we are clear in our mind and it is concurrently declared by this court that if in any statute there is a bar of plenary jurisdiction of civil court, the bar will be applicable if the authority acts in accordance with the said statute and its acts, orders do not violate the jurisdiction conferred upon that authority under the said statute then the bar of jurisdiction contained in the said statute applies and if the authority acts or passes any order in violation of the jurisdiction vested in it under the said statute and transgresses jurisdiction or the orders or action if scrutinized keeping in view the jurisdiction available under the said statute and the orders or action is found without jurisdiction then certainly the bar contained in the said statute on the plenary jurisdiction of the civil court is not applicable and the suit would be competent.

5.This Court has to analysis the scope of section 9 of the Code and statutory bar. However, section 102(6) of the Act of 2017 purports to oust the jurisdiction of Civil Courts, it is a settled principle of jurisprudence that such bars are not absolute. A Civil Court, being a court of ultimate jurisdiction under Section 9 CPC, always retains the power to examine whether an act performed by a statutory authority is:

 In excess of jurisdiction;

 Against the provisions of the parent Statute; or  Contaminated with mala fides.

6.From a holistic reading of the plaint, it is evident that the petitioner has attributed specific malice and ulterior motives to the respondents. Mala fide vitiates the most solemn proceedings. When a plaintiff alleges that a State functionary has acted with "ill-will," such a matter requires the recording of evidence, a task uniquely suited to a Civil Court. The learned courts below erred by summarily returning the plaint without realizing that the "Appellate Authority" under the Act is a creature of the same statute and may not be the appropriate forum to adjudicate upon independent allegations of malice.

7.The petitioner has raised a potent legal point: that the impugned notice was not issued by the "Licensing Authority." The protections of an ouster clause are only available to an order passed under the Act. If an order is passed by an official who is not the designated "Licensing

Authority" (and no valid delegation of power was produced), such an order is a nullity in the eyes of law. A Civil Court is fully competent to declare a nullity as such.

8.This Court also notes with concern the findings of the learned Appellate Court in Para 7 of its judgment, where it sought to neutralize any direction to the Appellate Authority.

By holding that the Civil Court has "no power" to even guide a litigant to a remedy, learned ADJ-V adopted a restrictive approach that defeats the spirit of access to justice. Such findings are harsh and legally unsustainable.

9.Learned trial court did not consider the nature of the dispute in its true perspective. By merely looking at the title of the Act and the ouster clause, it ignored the substantive allegations of jurisdictional defect and mala fides.

10.In view of the above, this revision petition is Allowed. The impugned judgments and orders of both the courts below are hereby set aside. The suit is deemed to be pending before the learned trial Court (Civil Judge-IV, D.I.Khan), which shall proceed with the matter on its merits.

Announced March 11, 2026 -Sd/- Hasnain JUDGE

(S.B) Hon’ble Mr. Justice Sadiq Ali