Muhammad Airf Vs Member Board of Revenue etc

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Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 50756/2019

Muhammad Arif Versus Member (Judicial-V) Board of Revenue etc.

JUDGMENT

Date of hearing: 17.04.2025

Petitioner by: Mr. Shafique Ahmad Ch., Advocate.

Respondent No.1 Mr. Waqar Saeed Khan, Assistant Advocate by: General, Punjab.

Respondent No.2 Malik Sultan Amir Awan, Advocate. by:

MALIK WAQAR HAIDER AWAN, J:- Through this constitutional petition, petitioner has called in question the vires of orders dated 05.12.2015 and 01.08.2019 passed by the District Collector, Gujrat and the Member (Judicial-IV), Board of Revenue, Punjab, respectively.

2.Firstly, I would like to deal with order dated 01.08.2019 passed by the Member (Judicial-IV), Board of Revenue, Punjab whereby while restoring ROR No.1453/2017 titled Razia Begum v. Mehmood Akhtar etc. (hereinafter called “revision petition”) filed by respondent No.2, the revision petition was disposed of on the same date with certain observations.

3.The interim order dated 02.08.2018 passed by the Member (Judicial-VII) Board of Revenue, Punjab depicts that the revision petition filed by respondent No.2 was dismissed for non-prosecution and said respondent filed an application for restoration of the revision

petition after a considerable period. On 04.03.2019, the revision petition filed by respondent No.2 was restored without issuance of notice to present petitioner and respondents were also summoned through Tehsildar as well as through registered notice for 29.04.2019. On the said date, respondents No. 1 to 6 (in the revision petition) were already represented through a counsel and on behalf of rest of the respondents, Rana Muhammad Anwar, Advocate submitted his power of attorney on whose request, the case was adjourned for 09.07.2019. On that very date, the revision petition was again dismissed for non- prosecution. Against the said order, application for restoration was again filed on 15.07.2019 which was fixed in Peshi for 01.08.2019 and on that very date, the revision petition was not only restored but also disposed of on merits vide detailed separate order.

4.Learned counsel for the petitioner contends that after dismissal of the revision petition, in the application for restoration, notice was not issued upon present petitioner, hence he was not aware of the pendency of revision petition which was twice dismissed for non- prosecution on 02.08.2018 and 09.07.2019. Adds that on both the occasions, revision petition was dismissed in the presence of learned counsel for respondents and as such it was mandatory under Order IX Rule 9 CPC to issue notice whereas in the second application for restoration of revision petition, no notice was issued, so much so the revision petition was decided on merits on the same day after its restoration which is against the principle of natural justice.

5.Learned Law Officer seriously objects regarding maintainability of this constitutional petition on the basis that petitioner has alternate remedy of review under Section 8 of the West Pakistan Board of Revenue Act, 1957 (hereinafter called “Act”). Learned Law Officer as well as learned counsel appearing on behalf of respondent No.2 have supported the impugned orders and prays for dismissal of the instant petition.

6.Heard. Record perused.

7.First, I would like to adjudicate upon the objection raised by learned Law Officer qua maintainability of present petition in presence of alternate remedy of review under the Act. For better appreciation, Section 8 of the Act is reproduced hereunder:-

Review of orders by the Board. – (1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made , or on account of some mistake or error apparent on the face of the record [or for any other sufficient reason] desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.

8.From bare reading of the afore-referred provision, it is very much clear that its purpose is limited only to the extent of clerical mistake and new facts. Even otherwise, the scope of review is limited to re-examination of the previous order. In this respect, reliance is placed upon judgments reported as Daewoo Corporation v. Zila Council, Jhang and 2 others (2004 SCMR 1213) and Haji Muhammad Boota and others v. Member (Revenue)BOR and others (2010 SCMR 1049). Hence, in absence of aforementioned purposes, review neither lies nor maintainable and as such the said objection is not tenable in the eye of law. In these circumstances, it could not be deemed to be an adequate alternate remedy for restricting the exercise of constitutional jurisdiction.

9.It is worth mentioning here that meaning of “adequate” is not provided in the Constitution of Islamic Republic of Pakistan, 1973, hence ordinary dictionary meaning is to be adopted as provided in Black’s Law Dictionary (12th Edition) which is as follows:-

Adequate, 1. Fully satisfying requirements; sufficient, suitable, and acceptable in both quality and quantity. 2. Legally sufficient; sufficing as a matter of law. 3. Minimally satisfactory, barely reaching an acceptable standard; just good enough.

10.In the light of above, availability of review under Section 8 of the Act, does not pass the test of “adequacy” to bar the constitutional jurisdiction of this Court.

11.It is a settled law that when a case is dismissed in presence of respondent/defendant, it cannot be restored without issuance of notice to him. For ready reference, provisions of Order IX Rules 8 & 9 CPC are reproduced below:-

“8. Procedure where defendant only appears. Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall making an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9.Decree against plaintiff by default bars fresh suit. (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from brining a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2)No order shall be made under this rule unless notice of the application has been served on the opposite party.” (emphasis supplied)

12.In the case in hand, second application for restoration was filed on 18.07.2019 in the office of the Member (Judicial-IV), Board of Revenue, Punjab which was fixed in Peshi for 01.08.2019 and on the said date, the Member (Judicial-IV), Board of Revenue, Punjab in a very hasty manner restored the revision petition without issuing notice to the adversary party and also decided the same on merits which is not

tenable in the eye of law and it amounts to condemning the other side unheard, which is in violation of Articles 4 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973. It is also settled principle of law that when law requires an act to be done in a particular manner, then it has to be done in that manner. In this respect, reliance is placed upon Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086), Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255) and Sheikh Ghulam Hussain v. Chief Settlement Commissioner and others (2016 YLR 285).

13.It is a settled law that no party can be prejudiced from the act of Court and where any court did not comply with a mandatory provision of law or omitted to pass an order required by law in the prescribed manner, then the litigant/party could not be taxed, much less penalized for the act or omission of the court. It is a celebrated principle/maxim of law i.e. Actus Curiae Neminem Gravabit (an act of court shall prejudice no man).

14.Placing the afore-noted principle/maxim in juxtaposition with the facts of this petition, it has come to surface that the present case is the worst example of exercising jurisdiction through which rights of adversary party have been prejudiced by the act of Court and petitioner has been condemned unheard which is the basic ingredient of dispensation of justice. It is said that even Satan was not condemned unheard and he was not unjustly judged and was also given an opportunity to defend. This principle, known as “audi alteram partem” (Latin for “hear the other side” or “no one should be condemned unheard”), is a fundamental aspect of natural justice and due process of law. Reliance can be placed upon Sh. Shajar Hussain v. Haji Abdul Majeed and others (2006 SCMR 913), Habib Bank Limited v. Mst. Parveen Qasim Jan and others (2014 SCMR 322) and Allah Bakhsh v. Allah Yar and 4 others (2017 CLC Note 9).

15.As a sequel to above, this writ petition is allowed and order dated 01.08.2019 passed by the Member (Judicial-IV), Board of Revenue, Punjab (whereby revision petition was restored as well as disposed of on merits) is hereby set aside. Resultantly, application for restoration of the revision petition shall be deemed to be pending before the Member (Judicial-IV), Board of Revenue, Punjab who shall proceed with the matter after issuance of notices to the parties in accordance with law.

16.For the reasons recorded in the preceding paragraphs, there is no need to discuss order dated 05.12.2015 passed by the District Collector, Gujrat. It is, however, observed that if the revision petition filed by respondent No.2 is ultimately restored, then the legality of order dated 05.12.2015 passed by the District Collector, Gujrat shall be seen by the Member (Judicial-IV), Board of Revenue, Punjab in accordance with law.

(MALIK WAQAR HAIDER AWAN)

JUDGE

Signed

APPROVED FOR REPORTING

JUDGE

Abis Ali