Find a Lawyer

Writ Petition No. 696-8 of 1974, decided on 19th July 1974.

-- S. 21(31-Review, power of-Confined to correction of clerical or arithmetical mistakes or errors arising from any accidental slip or omission-Attorney of party present before Settlement Authority but because of absence of his counsel attorney not examined ac his own witness and evidence closed-Subsequently on prayer of party opportunity given to attorney to be examined as his own witness Tribunal, held, had inherent power to pass further order and examine attorney-Objection that this amounted to review, held, hyper technical and not valid.

Muhammad Tufail v. Abdul Ghafoor and others P L D 1958 S C (Pat) 201 ; Zaitoon Begum v. Ghulam Shabbir P L D 1964 Kar. 100 and Zuhalr Siddiqi v. M. H. Sufi P L D 1964 Lab. 453 ref.

Mst. Allah Rakhi v. Mst. Raj Bibi and others P L D 1957 Lab. 70 rel.

Ch. Khalilur Rehman for Petitioners.

Malik Shaukat Ali for Respondents Nos. 1 to 5.

Nemo for Respondent No. 6.

Date of hearing : 19th July"1974.

This judgment will dispose of petitioner's writ petition calling in question the validity of the order of the learned Settlement Com missioner permitting examination of attorney of the respondent as his own witness despite the fact that on an earlier date respondent's evidence had been closed for non-presence of witnesses.

2. The admitted facts are that after the order of remand passed by this Court in Writ Petition No. 1009/R of 1962, the matter has been pending before the various Settlement Commissioners and ultimately it came up for hearing before Mr. Ijaz Ahmad, Settlement Commissioner on the 10th of December 1973, to whom the case had been entrusted for disposal. The following order was passed by the Settlement Commissioner on the said date-

"Called. Mr. Gulzar Hassan, Advocate is present in person who is representing self and Ch. Altaf Hussain, Advocate on behalf of Ch. Khalilur Rehman, Advocate- for Mrs. N. G. Hassan. Mr. Mohammad Abdullah Ahmad. General Attorney for Aziz-ur-Rehman, Zia-ur-Rehman, Mst. Sardar Begum and others is present who has been directed to produce further evidence in the case and it will be the last opportunity. Case to come up on 22-12-1973. The photostat copy of general power attorney be placed on the file."

On the adjourned hearing, namely, the 22nd of December 1913, Mr. Abrat Hussain, Advocate, appeared for counsel for the petitioners while Muhammad Abdullah Ahmad, Attorney. was present on behalf of the res pondents. No evidence had been summoned by the respondents for the said date. The respondent's Attorney stated that his counsel was ill and, therefore, the case be adjourned to enable the respondents to produce evidence on the next date. This prayer was disallowed and the respondent's case closed. On this the request of Mr. Gulzar Hassan petitioner for producing evidence in rebuttal was turned down on the ground that he has been able to show any new evidence given by the respondent's which might contain a new fact in respect of which he was to produce evidence in rebuttal. The respondents put in a miscellaneous application before the Settlement Commissioner for permission to examine the Attorney, who was present before the Settlement Commissioner on the 22nd of Decem ber 1973 and could not be examined because of illness of respondent's counsel on the said date. The application was opposed but as already stated above, the learned Settlement Commissioner while rejecting the objection allowed the prayer by the impugned order.

3. Arguments have been addressed at the bar as to the scope of powers of review under section 21(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which reads as under:-

"21 .

(3) Clerical or arithmetical mistakes in any order passed by an officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority or his successor-in-office."

In this connection reliance has been placed on Muhammad Tufail v. Abdal Ghafoor and others (P L D 1958 .S C (Pak.) 201), in which authority section 11(5) (reproduced below) of the Pakistan Rehabilitation Ordinance XIX of 1948, has been interpreted

"13.

(5) The Rehabilitation Commissioner or Additional, Deputy or Assistant Rehabilitation Commissioner may after giving notice to the parties concerned review his own order so far as justice -may require, to correct errors or supply omissions which are apparent upon the face of the record."

It is argued that the impugned order recalling the earlier order amounts to review and is a case of illegal assumption of jurisdiction by the learned Settlement Commissioner. Powers of review under the unamended section 21 of Act XXVIII of 1958 were very wide (See Zaitoon Begum v. Ghulam Shabbir (P L D 1964 Kar. 100)). However, with the omission of subsections (1) and (2) by virtue of the Displaced Persons (Compensation and Rehabilitation) (Amend ment) Ordinance (II of 1962), the jurisdiction retained under subsection (3) of section 21 is akin to that of section 152 of the Code of Civil Procedure Zuhair Siddiqi v. M. H. Sufi (P L D 1964 Lah. 453) refers.

Bearing these principles in mind, there is no escape from the conclusion that the power of review is confined to correction of clerical or arithmetical, mistakes in an order passed by the settlement authority or errors arising therein from any accidental slip or omission. The question that falls for determination whether the impugned order has been passed in exercise of review jurisdiction. In Settlement Scheme No. 1, Chapter III deals with determination of entitlement of the applicant to retain the property applied for. In case of enquiry when entitlement is not clear, the Deputy Settlement Commissioner is to adopt procedure given in paras. 10 to 15 and to pass au order under para. 16. The procedure provided corresponds mutatis mutandis to the relevant provisions of the Code of Civil Procedure. The summoning of the witness and examination thereof was, therefore, mere of a question of procedure for arriving at a correct decision of the matter pending before the Settlement Commissioner. The Attorney was present before the Tribunal o the 22nd of December 1973 and if because of non-availability of counsel h was not examined as his own witness, and an order passed closing the respon dents case under misapprehension of fact that no witness was present, it was a fit case to pass a further order under inherent jurisdiction of the Tribunal to examine the said Attorney, Mst. Allah Rakhi v. Mst. Raj Bibi and others (P L D 1957 Lah. 70) is in point. The objection raised is hypertechnical and no valid exception can be taken to the impugned order, as it does not suffer from lack of jurisdiction nor is it violative of any provision of law. The result is that the writ petition fails and is dismissed. There will be no order as to costs.

K. B. A. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.