Find a Lawyer

Writ Petition No.3705 of 1983, decided on 9th May, 1984.

‑‑‑Para. 25‑‑Provisional Constitution Order (1 of 1981), Art.9‑‑ Pre‑emption suit‑‑ Additional Commissioner on appeal against pre‑emption decree finding that pre‑emptor failed to make up deficiency in court‑fee arriving at conclusion that suit automatically stood dismissed and appeal against decree passed in suit became infructuous‑‑Member, Board of Revenue finding discrepancy between Urdu Order and English Order of Collector regarding deposit of court‑fee and further finding that Urdu order calling for deposit of court‑fee was a forged document‑‑Finding of Member, Board of Revenue about forged nature of Urdu order of Collector borne out from record and his finding that Urdu order of Collector having no 'effect on judgment in English written .by him and that Urdu order did not fit in proceedings in suit justified‑‑Question arising whether after setting aside orders of Additional Commissioner, Board of Revenue should have remanded case and decided appeal straightaway without going into merits of appeal otherwise‑‑Held, since Additional Commissioner took note of, one aspect of case and decided appeal straightaway without going into merits of appeal otherwise, it was necessary that he should decide other aspects of appeal and order of Board of Revenue restoring decree of Collector was therefore not proper‑‑Order of Board of Revenue upheld to the extent it related to Urdu orders passed by Collector and Additional Commissioner directed to dispose of appeal on merits.

Najmul Hassan Kazmi for Petitioners.

Ghaus Muhammad Ch. for Respondents.

Date of hearing: 9th May, 1984.

A pre‑emption suit was decreed in favour of the contesting respondent by the Collector on 20‑8‑1977. The petitioners challenged the decree in appeal before the Additional Commissioner on a number of grounds but the Additional Commissioner, vide his order, dated 16‑3‑1978 found that since the pre‑emptor did not make up the court‑fee within the given date the suit will be deemed to have been dismissed automatically. He accordingly dismissed the appeal as infructuous. The pre‑emptor took the 'matter to the Board of Revenue in a revision. The learned Member, Board of Revenue, vide his order, dated 20‑8‑1983 found discrepancy between the English order and Urdu order passed by the Collector and came to the conclusion that the Urdu order referring to the deposit of the court‑fee was a forged document. The learned Member thus allowed the revision petition and restored the pre‑emption decree of the Collector. The defendants have come in a constitutional petition to the High Court.

2. It is contended on behalf of the petitioners that the orders of the Board of Revenue that the Urdu orders passed by the Collector was a forgery has been passed without any inquiry by the Board of Revenue. It is also argued that the Board of Revenue after setting aside the order of the Additional Commissioner should have remanded the case back to the Additional Commissioner for decision on merits as other issues raised in appeal were yet to be determined when the Additional Commissioner dismissed the appeal for the reason that it had become infructuous.

3. The record‑of the trial Court as well as the appellate Court ha been perused after opening the sealed envelopes. The observation is of the learned Member that the Urdu orders of 20‑8‑1977 regarding the making up of the court‑fee by 27‑9‑1977 had been written on a separate sheet and not on the running sheet of interim orders is clearly supported by the record. It is also an admitted position that while English order does contain a direction regarding the payment of the balance sale price but it does not contain any reference to the making up of the court‑fee. On the contrary issue No.4 relating to the valuation was found in favour of the plaintiff. In view of this background there is justification for the observations of the Board of Revenue that the Urdu order of 20‑8‑1977 was a forged document. It is also clear that this order does no fit in with the proceedings in the suit. The decision of the Board of Revenue that this order even if written by the Collector will have no effect on the judgment given in 'English on 20‑8‑1977, is equally justified.

4. The question now arises whether after setting aside of the orders of the Additional Commissioner the Board of Revenue should have remanded the case back to the Additional Commissioner for decision on merits. The Additional Commissioner took note of only one aspect of the case and decided the appeal straightaway without going into the merits of the appeal otherwise. Now that the orders of the Additional Commissioner have been set aside it is necessary that he should determining the other issues raised in the appeal. The board of the Revenue therefore, by straightaway restoring the decree of the Collector, ha not passed proper order.

In view of the above considerations while the order of the Board of Revenue is endorsed to the extent that it relates to the Urdu orders passed by the Collector, the writ petition is allowed partly, and the Additional Commissioner is directed to dispose of the appeal on merits. There shall be no order as to costs.

M.Y.H. Petition allowed.

Find a Lawyer Near You

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