P L D 2026 Balochistan 50

 P L D 2026 Balochistan 50

Before Muhammad Ayub Khan Tareen, J

SHER ALI KAKAR ---Petitioner/Plaintiff

Versus

The DIRECTOR GENERAL SPORTS, GOVERNMENT OF

BALOCHISTAN, AYUB STADIUM, QUETTA and 4 others ---

Respondents/Defendants

Civil Revision No. 477 of 2023, decided on 21st March, 2025.

(a) Civil Procedure Code (V of 1908)---

----Ss.9, 20 & O.VII, R.10---Specific Relief Act (I of 1877), Ss.42 & 54---

Suit for declaration and permanent injunction against a public

functionary---Trial Court returning the plaint due to lack of territorial

jurisdiction---Jurisdiction of civil court---Exercise of jurisdiction by

civil courts against mala fide acts of public functionaries despite

statutory bar---High Court remanding the matter to Trial Court to

record evidence and decide the matter on merits---Brief facts were

that the petitioner filed a civil suit seeking declaratory and injunctive

relief before the civil court at Quetta, relating to matters of the

Balochistan Squash Association (BSA), of which he had previously

held office---During the proceedings, it emerged that the Pakistan

Squash Federation (PSF) held its 43rd Annual General Meeting and

that subsequent elections and organizational steps concerning BSA

were conducted there---Notices were issued, written statements were

filed, and issues were framed by the Trial Court---The Trial Court

ultimately returned the plaint under O.VII R.10, C.P.C. on the ground

that the impugned meeting and related actions occurred at

Islamabad, outside its territorial jurisdiction---Appellate court upheld

Trial Court s order---The petitioner then filed the present

constitutional petition challenging the orders of the courts below---

Held: Trial Court after considering that controversy, was required to

decide the suit by recording of evidence, the provisions of O.VII, R.10,

C.P.C. could not be pressed into service to non-suit the petitioner---

When an action of the public authority was stated to be without

jurisdiction and void, the plaintiff was within his rights to maintain

suit before civil court under S.9 of the C.P.C.---Where a statute

provided an alternate remedy or forum, then, if the act of public

functionary was statedly mala fide, void or without jurisdiction, then

the general jurisdiction of a civil court under S.9 of the C.P.C. was not

barred---Courts below failed to appreciate the facts of the case in light

of relevant law provisions---Orders passed by courts below were set

aside and the matter was remanded to the Trial Court for affording opportunity of leading evidence to the parties for decision on merits--

-Constitutional petition was allowed, in circumstances.

(b) Civil Procedure Code (V of 1908)---

----S.20---Jurisdiction of courts, invocation of---Determination---

Components---Meaning, essence and concept---Section 20 of C.P.C.

confers jurisdiction on a Court in two ways---Firstly, on the basis of

where a defendant resides, carries on business or works for gain

within its local limits---Secondly on the basis of where the cause of

action wholly or in part arose within its local limits---Jurisdiction

means the authority to decide---The concept of jurisdiction of a

Court encompasses (i) territorial jurisdiction, (ii) pecuniary

jurisdiction and (iii) subject matter jurisdiction---The concept of

jurisdiction has its genesis in the physical power of a Court to issue

process to persons within the reach of the Court---Shorn of all

extraneous frills , this is the essence of jurisdiction---A Court is to

decide matters when persons relating thereto are within its reach.

Bahoo Dying Industries (Private) Limited v. Sui Northern Gas

Pipelines Limited and others PLD 2021 Lah. 186; Dr. Raees M.

Mushtaque through General Attorney v. Province of Sindh through

Secretary Food and 3 others 2018 MLD 918 and Taisei Corporation v.

A.M. Construction Company (Pvt.) Ltd. PLD 2012 Lah. 455 ref.

(c) Jurisdiction---

----Concept of---The concept of jurisdiction has its genesis in the

physical power of a Court to issue process to persons within the

reach of the Court---The jurisdiction of a legal forum/Court includes

its (i) territorial jurisdiction; (ii) pecuniary jurisdiction; and (iii)

subject matter jurisdiction---The jurisdiction is always conferred

upon the Courts by a law and it cannot be decided by the parties

inter se---The territorial jurisdiction refers to a Court s power over

actions and parties within the bounds of a particular territory---If a

Court does not have territorial jurisdiction over the events or

persons within it, then the Court cannot give a binding decision

regarding the rights of the parties.

Messrs Muhammad Tufail and Company through Muhammad Tufail

(deceased) through Legal Heirs PLD 2017 SC 51 rel.

(d) Civil Procedure Code (V of 1908)---

----S.9---Statutory bar on jurisdiction of civil court---Actions of public

functionary being challenged before the civil court despite the

statutory bar---Civil courts empowered to exercise jurisdiction if

orders passed with mala fide---Raison d`etre---Where a statute

provides an alternate remedy or forum, then, if the act of public

functionary is statedly mala fide, void or without jurisdiction, then

the general jurisdiction of a civil court under S.9 of the C.P.C. is not

barred---With regard to bar of jurisdiction contained in any statute,

it is settled 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---When an action of a

public authority is stated to be without jurisdiction and void, then

plaintiff is within his rights to maintain suit before civil court under

S.9, C.P.C.

Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 521 rel.

Fehmida Kiran v. Chairman House Allotment Committee / Secretary

S&GAD and others 2023 MLD 659 ref.

(e) Administration of justice---

----Question of fact or a mixed question of law and fact, cannot be

effectively decided without recording of evidence.

Petitioner in person.

Ms. Salma Fateh, Assistant Advocate General, assisted by Murid Ali,

Deputy Director and Abdul Qadir, Assistant Director Sports for

Respondent No. 1.

Naseer Ahmed Bangulzai, Deputy Attorney General for Respondent

No. 2.

Respondent No. 3 proceeded against ex parte on 29-4-2024.

Matiullah Khan Kakar, for Respondents Nos. 4 and 5.

Date of hearing: 18th March, 2025.

ORDER

MUHAMMAD AYUB KHAN TAREEN, J.---This petition is directed

against the order and decree dated 19th December 2022, passed by the

learned Civil Judge-V, Quetta in Civil Suit No.82/2021, whereby, the

petitioner s suit was returned to him under Order VII Rule 10, C.P.C,

for presentation before the proper forum. Assailed in Civil Appeal

No.02/2023, but dismissed, vide judgment and decree dated 25th

August 2023, passed by the learned Additional District Judge-X, Quetta;

hence, this petition with the prayer to set aside the impugned, order,

judgment and decrees passed by the courts below and to remand the

matter to the trial court for its decision on merits.

2. Facts of the case are that the petitioner (plaintiff) filed a suit for

declaration and permanent injunction against the respondents

(defendants) with the averments that he is representing Balochistan

Squash Association (BSA), which is affiliated with the Pakistan Squash

Federation (PSF) and Balochistan Olympic Association. The basic

concept of the Federation and Association is to select good players

from different parts of the Province and District in order to bring good

name to the country. It is the petitioner s case that he remained on the

positions of General Secretary, President and Chairman of the BSA. After amendment in the Constitution of Balochistan Squash

Association, the petitioner participated in the meetings held by the

Federation as Chairman BSA. The petitioner s grievance is that the PSF

called 43rd Annual General Meeting, which was not

circulated/intimated to the petitioner; besides, the Honorary Secretary,

PSF (respondent No.2) introduced a parallel Squash Association by

electing Saiful Islam Kakar (respondent No.4) as President and

Muhammad Arshad (respondent No.5) as General Secretary of BSA.

Finally on 1st August 2018, ban was imposed on the petitioner to

contest the election of BSA or participate in any activity of Squash in

Balochistan; hence, this suit with the following prayer:

A. Declaring that minutes of dated 31.07.2018 and Annual

General Meeting held on 01.08.2018 at Islamabad is illegal

and unlawful;

B. Declaring the election of President PSF as illegal and unlawful

as per Constitution of PSF and Sports Policy of Pakistan;

C. Declaring that the Election of defendants Nos.4 and 5 is illegal

and unlawful as per Sports Policy;

D. By means of permanent injunction defendants Nos.1, 2 and 3

not contact the defendants Nos.4 and 5 and defendants Nos.4

and 5 not to pose themselves to be a President and Secretary

of Balochistan Squash Association;

E. Any other relief which deems fit and proper in the

circumstances of the case may also be awarded in favour of

the plaintiff, in the interest of justice.

3. On service of notices, the respondents Nos. 1 and 2 (defendants)

filed their written statements, wherein they raised various legal objections regarding the maintainability of the suit and contested the

same on merits as well.

4. Out of the pleadings of the parties following issues were framed:

1. Whether this court has jurisdiction to entertain the instant

case?

2. Whether the instant suit does not come into the purview of

Section 42 of Specific Relief Act?

3. Whether the election for President PSF, as well as the election

of defendants Nos. 4 and 5 were illegal in terms of Sports

Policy of Pakistan Squash Association?

4. Whether the plaintiff is entitled for the relief claimed for?

5. Relief?

Additional Issues:

1. Whether the defendant No.2 on dated 31.07.2018 and

01.08.2018 can impose life time ban on plaintiff or no as per

law?

2. Whether Balochistan Squash Association Constitution was

amended the Constitution of BSA by General Council?

5. The learned trial court (Civil Judge-V, Quetta), after hearing the

arguments, returned the petitioner s suit under Order VII Rule 10,

C.P.C. on the ground that the impugned minutes have been passed at

Islamabad, which does not fall within the territorial jurisdiction of the

trial court. Assailed in civil appeal, but dismissed by the appellate

court (Additional District Judge-X, Quetta). Hence this petition with the

prayer mentioned above.

6. I have heard the learned counsel for the parties and gone through

the record with their assistance, which reflects that the petitioner

instituted a suit for declaration and permanent injunction with the

averments that the PSF in violation of the Sports law, has imposed ban

on petitioner to participate in any activity of squash in Balochistan.

The court after framing of issues, returned the suit by holding that the

petitioner had failed to exhaust the remedy before proper forum.

Appeal filed by the petitioner was dismissed. The trial court after

considering that controversy was required to decide the suit by

recording of evidence, the provisions of Order-VII, Rule-10A, C.P.C.

could not be pressed into service to non-suit the petitioner. When an

action of a public authority is stated to be without jurisdiction and

void, then plaintiff is within his rights to maintain suit before civil

court under section 9 of the Civil Procedure Code, 1908.

The concept of jurisdiction has its genesis in the physical power of a

Court to issue process to persons within the reach of the Court. The

jurisdiction of a legal forum/Court includes its (i) territorial

jurisdiction; (ii) pecuniary jurisdiction; and (iii) subject matter

jurisdiction. The jurisdiction is always conferred upon the Courts by a law and it cannot be decided by the parties inter se. The territorial

jurisdiction refers to a Court's power over actions and parties within

the bounds of a particular territory. If a Court does not have territorial

jurisdiction over the events or persons within it, then the Court cannot

give a binding decision regarding the rights of the parties. This concept

was elaborated by the Hon'ble Supreme Court of Pakistan in the case

of Messrs Muhammad Tufail and Company through Muhammad Tufail

(deceased) through Legal Heirs (PLD 2017 SC 51) wherein it was held

that, Section 20, C.P.C. confers jurisdiction on a Court in two ways.

Firstly, on the basis of where a defendant(s) resides, carries on

business or works for gain within its local limits. Secondly on the basis

of where the cause of action wholly or in part arose within its local

limits. Jurisdiction means the authority to decide. The concept of

jurisdiction of a Court encompasses (i) territorial jurisdiction, (ii)

pecuniary jurisdiction and (iii) subject matter jurisdiction. The concept

of jurisdiction has its genesis in the physical power of a Court to issue

process to persons within the reach of the Court. Shorn of all

extraneous 'frills', this is the essence of jurisdiction. A Court is to

decide matters when persons relating thereto are within its reach.

Reliance is placed to the case titled Bahoo Dying Industries (Private)

Limited v. Sui Northern Gas Pipelines Limited and others (PLD 2021

Lahore 186).

In the case of Dr. Raees M. Mushtaque through General Attorney v.

Province of Sindh through Secretary Food and 3 others (2018 MLD

918), the Sindh High Court, in the last paragraph, has held as under:

"As observed above, in this matter issues have already been framed

and matter is ripped for evidence as stated by the parties

counsel, we have perused the pleading of the parties showing

that parties are seriously at issue, therefore, the court instead of

rejecting the plaint could decide the dispute by referring to the

evidence. Order of rejection of plaint was not warranted in the

circumstances."

7. The principles for return of plaint were discussed in detail in the

judgment reported as Taisei Corporation v. A.M. Construction

Company (Pvt.) Ltd. (PLD 2012 Lahore 455), the relevant portion of

which is given as under:

"22. In order to truly understand the concept of the application of

the provisions of Order VII, Rule 10 of C.P.C. the case-law has

settled the methodology by laying down the law that for the

purposes of deciding the application under Order VII, Rule 10 of

C.P.C. the contents of the plaint as presented in the Court are

only to be looked into particularly if the objection qua the

jurisdiction as raised is to be decided only on the basis of legal

arguments addressed by the parties. If the question of

jurisdiction requires probing into some disputed facts, then the matter has to be resolved after framing of necessary issue and

recording of evidence of the parties.

The question of fact or a mixed question of law and fact, cannot be

effectively decided without recording the evidence.

It has been settled throughout that where a statute provides an

alternate remedy or forum, then, if the act of public functionary is

statedly mala fide, void or without jurisdiction, then the general

jurisdiction of a civil court under section 9 of the Code is not barred.

With regard to bar of jurisdiction contained in any statute, it is

settled 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. When an action of a public authority

is stated to be without jurisdiction and void, then plaintiff is within his

rights to maintain suit before civil court under section 9, C.P.C.

Reliance is placed on the case titled Muhammad Nazir Khan v. Ahmad

and 2 others (2008 SCMR 521) and Fehmida Kiran v. Chairman House

Allotment Committee/Secretary S&GAD and others (2023 MLD 659).

8. The courts below failed to appreciate the facts of the case in light

of relevant law provisions. Thus, the petition is allowed, the order

dated 19th December 2022 and judgment and decree dated 25th

August 2023, respectively passed by the Civil Judge-V, Quetta and the

Additional District Judge-X Quetta are set aside, and the matter is

remanded to the learned trial court for affording an opportunity of

leading evidence to the parties and decision thereon purely on merits.

UN/104/Bal. Petition allowed.