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Civil Reference Application No. 101 of 1971, heard on 18th February 1975.

----Proof of fraud and forgery -Fall to ground even solemn transactions.

---S. 33-Appellate Tribunal-Inherent power-Dismissal for default Setting aside order of-Appellant duly served but unable to appear on date fixed for hearing on account of sickness-Appellate Tribunal rejecting prayer for adjournment and dismissing appeal for default of appearance -Order of dismissal passed ex parte, could be set aside by Tribunal under its inherent powers if Tribunal satisfied as to non-appearance being due to unavoidable circumstance.

Iqbal Hussain Shah v. Abdul Ghani P L D 1967 Lah. 633 ref.

------Setting aside of-Inherent power of Courts and Tribunals to set aside ex parte order on sufficient cause shown-Article 130, Constitution of Pakistan (1962) no bar.

It is common knowledge that a statute normally does not provide for each and every conceivable eventuality, and in respect of some unforeseen events arising in a case for which it has made no provision, the Courts would be deemed to have inherent jurisdiction in the interest of orderly dispensation of justice.

Suppose, the Tribunal has, in a given case in which parties were reported to have been duly served, decided an appeal ex parte against a person who had failed to appear before it on the specified date. But the person con cerned later files an application for the setting aside of ex parte order on the ground that he was never served, and his alleged signature on the notice had been forged by the collusion of process-server with the other party. Faced with this situation, can it be contended that the Tribunal would have no jurisdiction to enquire into the allegations of petitioner There could be no hesitation to answer this question in negative. It is well-established that upon the proof of fraud and forgery, even a solemn transaction would fall to the ground. And thus in the given case the Tribunal would have no option but to enquire into the allegations of petitioner and in case he would be able to establish his case, it will have no choice but to set aside the ex parte order, as otherwise the person concerned cannot be said to have been afforded an "opportunity of being heard".

Article 130 of the Constitution of Pakistan (1962) would, in no way, derogate from this conclusion. A closer scrutiny of the provision of this Article would show that it deals with Courts and confines of their jurisdiction saying in so many words that so long as any jurisdiction is not conferred on them by Constitution or by or under the law, they shall have no jurisdiction. It should be remembered, however, that Courts are established to decide contentious causes of civil and criminal nature between citizens, and for that purpose they are invested with necessary jurisdiction. Evidently, therefore, all that Article 130 of the Constitution says is that the Courts thus established should remain within the confines of their jurisdiction conferred on them by the Constitution or law. And to that extent, the mandate of this Article would appear to be unequivocal.

Mohammad Afzal Lone for Applicant.

Respondent : Ex parte.

Date of hearing: 18th February 1975.

This is a reference under section 66 (1) of Income-tax Act, 1922 (hereinafter called the Act) in which the Income-tax Appellate Tribunal, Peshawar Bench, Peshawar has referred for the decision of this Court the following question of law:

"Whether on the facts and in the circumstances of the case and in the absence of any provision in the Income-tax Act, 1922 and the Income-tax Appellate Tribunal Rules, 1948, the Tribunal has rightly held that it has inherent jurisdiction to set aside an ex parte order passed by it "

The facts which are relevant for the decision of this reference are that respondent/assessee filed before Income-tax Appellate Tribunal, Peshawar an appeal against the order of Appellate Assistant Commissioner. But when the appeal in question came up for hearing on the date for which parties had been summoned the Tribunal received a telegram from the representative of respondent/assessee that he was ill and prayed that the case be adjourned to another date. It is common ground between the parties that the Tribunal rejected the prayer for adjournment, thereafter proceeded with the hearing of appeal ex parte and dismissed it. Subsequently, however, the assessee filed an application before Tribunal for the setting aside of ex parte order on the ground that on the last date of bearing he was sick and in support thereof produced a medical certificate. The learned counsel agrees that this application was, notwithstanding the objection of Department that in the Act and Rules made thereunder there existed no power under which an ex parte order could be set aside, allowed by the Tribunal. But even so, it was persuaded by the Department to refer the aforesaid question of law for the decision of this Court, in view specially of Article 130 of abrogated Constitution of 1962 (hereinafter called the Constitution) which reads as under:-

"No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law."

It may be mentioned, to begin with, that the Act and Rules made thereunder are entirely silent in regard to the jurisdiction of Tribunal to set aside an ex parte order passed by it in a case in which an aggrieved person A has been able to show that he was prevented to appear before it on the date fixed for the hearing of cause due to sufficient reasons. However, reference to clause (a) of subsection (4) of section 33 of the Act would appear to be useful which reads as under:-

"The Appellate Tribunal shall give both parties to the appeal an opportunity of being heard."

The unambiguous language of this provision would appear to present no difficulty, as it is clear from it that before proceeding with the hearing of appeal, the Tribunal shall afford two parties an opportunity of being heard.

"Opportunity of being heard," however would not mean that even if parties have been served, the Tribunal would be unable to proceed with the decision of appeal ex parte. But this is not the end of the matter. Suppose, the Tribunal has, in a given case in which parties were reported to have been duly served, decided an appeal ex parte against a person who had failed to appear before it on the specified date. But the person concerned B later files an application for the setting aside of ex parte order on the ground that he was never served, and his alleged signature on the notice had been forged by the collusion of process-server with the other party. Faced with this situation, can it be contended that the Tribunal would have no juris diction to enquire into the allegations of petitioner We have no hesitation to answer this question in negative. It is well-established that upon the proof of fraud and forgery, even a solemn transaction would fall to the ground And thus in the given case the Tribunal would have no option but to C enquire into the allegations of petitioner and in case he would be able to establish his case, it will have no choice but to set aside the ex parte order, as otherwise the person concerned cannot be said to have been afforded an "opportunity of being heard" within the meaning of clause (a) of subsection (4) of section 33 of the Act. To quote another example let us take the case of a person who, in order to attend his case before Tribunal, leaves his house in the morning in his motor-car which, however, meets with an accident on the way in which he is injured and removed to hospital. Therefore, when the case is taken up by Tribunal and he is called absent, the Tribunal proceeds with the case ex parte and decides it against him. In these circumstances, will it be open to Tribunal to say that it has no jurisdiction to set aside the ex parte order even if the person has filed an application before it for that purpose supported by a medical certificate of the hospital The consequences arising out of a negative answer to this question could well be imagined, as in that eventuality petitioner would be forced to resort to other remedies, such as filing of civil suit or constitu tional petition either of which would cause him delay, expense and anxiety. Surely, no such intention can be attributed to Legislature which, in view of the type of functions it performs, has as its principal object the welfare of citizens.

Article 130 of the Constitution would, in no way, derogate from this conclusion. A closer scrutiny of the provision of this Article would show that it deals with Courts and confines of their jurisdiction saying in so many words that so long as any jurisdiction is not conferred on them by Constitution or by or under the law, they shall have no jurisdiction. It should be remembered, however, that Courts are established to decide contentious causes of civil and criminal nature between citizens, and fort that purpose they are invested with necessary jurisdiction. Evidently, there fore, all that Article 130 of the Constitution says is that the Courts thus established should remain within the confines of their jurisdiction conferred on them by the Constitution or law. And to that extent, the mandate of this Article would appear to be unequivocal. It is common knowledge, however, that statute normally does not provide for each and every conceiv able eventuality, and in respect of some unforeseen events arising in a case for which it has made no provision the Courts would be deemed to have inherent jurisdiction in the interest of orderly dispensation of justice. To illustrate this point, let us take the example of the record of a case which has been burnt say on account of intentional or accidental fire. And in respect of the reconstruction of which there is nothing in the statute, under which the Court/Tribunal has been established, to decide that case. Would the Court or Tribunal in a case of this nature be able to say that it has no jurisdiction to order the reconstruction of record We are satisfied that jurisdiction in that regard would be inherent in the Court/Tribunal without which it would be unable to discharge its functions for which it was established.

In an analogous case of Iqbal Hussain Shah v. Abdul Ghani (P L D 1967 Lah. 633) coming up before Lahore High Court, a similar question had arisen for consideration and it was answered thus:

"There are no provisions under the Act for the dismissal of cases in default, but this power can be considered to be inherent in all those Courts or Authorities who exercise quasi-judicial powers as a civil Court to dismiss a case for want of prosecution, and when an order dismissing a case in default is passed, the Court or Authority has inherent jurisdiction to restore it to its file."

In that case which had arisen from settlement proceedings the question was whether in the absence of any power given to Settlement Commissioner by Displaced Persons (Compensation and Rehabilitation) Act, 1958, he could restore an application dismissed by him for default Their Lordship noted that although no such power was given to Settlement Commissioner by the Act, yet they held that jurisdiction in that regard would be deemed to be inherent in him in order to be able to restore an application dis missed for default. In this view, the ratio of that judgment, with which we respectfully agree, would fully apply to this case.

Our answer to the above question posed for the decision of this Court, therefore, would be in affirmative. But under the circumstances, parties would bear their own costs.

A copy of this judgment would, as required by subsection (5) of section 66 of the Act, be sent to Income-tax Appellate Tribunal, Peshawar Bench, Peshawar.

K. B. A. Answered in affirmative.

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