--S. 92--Suit property was waqf property--Scheme of management of waqf property was laid down by waqif-

 PLJ 2022 Quetta 16

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

----S. 92--Suit property was waqf property--Scheme of management of waqf property was laid down by waqif--Non-obtaining of permission for filing of suit from AG--Preference and regard--Question of, whether permission from AG was required to petitioner to file suit in hand and whether property was not waqf property--Waqif in his waqf Nama laid down scheme of management of property and also manner of replacement and substitution of its committee members--Imam Bargah was made waqf for purpose of Imam Bargah and other religious obligations for Shia community, and waqf deed was duly registered--Petitioner did not dispute said property, and he admitted that property is factually waqf property--Petitioner had not been detained any permission from AG prior to filing of suit and it was incumbent upon petitioner before filing of suit to obtain permission from AG as such, suit of petitioner was not maintainable on this sole ground--Additional District Judge, has rightly; interfered with judgment passed by Civil Judge-- Petitioner has failed to point out any illegality or material irregularity in judgment passed by appellate Court, warranting interference by High Court in exercise of revisional jurisdiction--Revision petition dismissed.   [Pp. 19 & 20] C, D, E, F & H

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

----S. 92--Object of--Protection of public trust--Object of Section 92, CPC is to protect a public trust of a charitable and religious nature from being subjected to harassment by suits filed against them.   

                                                                                               [P. 19] A

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

----S. 92(i)(a) to (h)--Scope of--Where Court holds on basis of evidence that property in question is waqf property, and relief sought by petitioner falls within scope of clauses (a) to (h) of sub-section (i) of Section 92, CPC, suit can be dismissed on sole ground; that consent under CPC had not been obtained prior to filing of suit.     [P. 19] B

Preference and regard--

----Preference and regard are always given to findings of appellate Court, if those are not suffering from any legal infirmity.

                                                                                               [P. 20] G

2013 SCMR 1300 ref. 2010 SCMR 827.

Mr. Ahsan Rafiq Rana, Advocate Petitioner.

Mr. Muhammad Ayub, AAG for Respondents.

Date of hearing: 15.9.2020.

 PLJ 2022 Quetta 16
Present: Rozi Khan Barrech, J.
MUHAMMAD NASEEM JAVED--Petitioner
versus
ANJUMAN-E-ASNA ASHRIA and another--Respondents
C.R. No. 212 of 2016, decided on 6.11.2020.

Judgment

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 side 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 instant 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 illegal 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 the 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 Honerable Court thinks fit and proper may also be given with the 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 pleadings 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 assistance.

6. The question issue which requires resolution by this Court is that whether the permission from the Advocate General under Section 92, CPC 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, CPC 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, CPC is to protect a public trust of a charitable and religious nature from being 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, CPC has no application.

8. The question of whether permission from the Advocate General under Section 92, CPC is required can only be determined once it is established 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 sub-section (i) of Section 92, CPC, the suit can be dismissed on the sole ground; that consent under Section 92 CPC 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, CPC, then the consent under Section 92, CPC 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 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. The Waqif 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 Imamm 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 obtain 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 comparative 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 Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs and other 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 proper 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 Shafi and others 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 petitioner 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 to costs.

(Y.A.)  Revision petition dismissed