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Before Ajmal Mian, Actg. C. J. and Mir Hazar Khan Khoso, J
HIDAYATULLAH AND 21 OTHERS‑ Petitioners
versus
NOOR MUHAMMAD AND 49 OTHERS‑ Respondents
‑‑ Art. 9‑Constitutional petition‑Question Whether a legal pro ceeding has been competently filed, held, was to be determined with reference to date on which same was filed.
‑‑O.III, r. 4‑Constitutional petition competently filed by three attornies‑Any subsequent withdrawal by one or more of them, held. would not render petition as incompetent‑Effect of withdrawal would be that in absence of a clause in power‑of‑attorney authori sing attornies to act severally, remaining attornies cannot continue to prosecute legal proceeding but parties on whose behalf they were appearing jointly would be entitled to prosecute legal proceeding competently filed.
0. III. r. 4‑Power of attorney‑Petitioners represented by their Advocate whose power was signed by three attornies jointly‑Till time 'Vakalatnama' is withdrawn with permission of Court he con tinues to represent petitioners.
S. 4‑Provisional Constitution Order (I of 1981), Art. 9‑Suit for declaration filed by a number of persons‑Even one of persons aggrieved by impugned order passed in suit could file constitutional petition.
S. 3(2) & 4‑Provisional Constitution Order (1 of 1981), Art. 9 Constitutional petition‑Suit for declaration of partition of landed property‑Decree‑Petitioners defendants in suit and not plaintiffs Question whether an effective decree could be granted in absence of any co‑sharer, held. would be an issue in suit but not relevant in constitutional petition.
‑‑ S. 4‑Provisional Constitution Order (1 of 1981), Art. 9‑Cons titutional petition ‑Maintainability‑Estoppel ‑ Suit for declara tion‑Petitioners who were parties to suit impleaded as parties to Constitutional petition‑Fact that some of petitioners had withdrawn themselves to be petitioners and factum that remaining petitioners' request to transpose them as respondents declined by High Court, held, would not render constitutional petition as incomepetent Respondents having themselves opposed remaining petitioners' request to transpose the petitioners who wanted to withdraw from the petition as the respondents, were estopped from urging that petition had become incompetent because of such petitioners not being parties to petition.
‑‑S. 4‑Civil Procedure (Special Provisions) Ordinance (I of 1968), S. 4‑Evidence Act (I of 1872), S. 85‑Power‑of‑attorney‑Execu tion‑Power of attorney attested by Naib‑Tehsildar‑Attornies who were themselves defendants in suit filing joint written statement but Assistant Commissioner rejecting written statement as well as power of‑attorney for reason that it was attested subsequent to its execution and that it was not attested by a Magistrate and directed defendant to file separate written statements which was not done and Assistant Commissioner consequently passing an ex parse order‑Not being satisfied with execution of power‑of‑attorney, only course for Assis tant Commissioner, held, E: ;; to ask for further evidence for its execution or to have asked said defendants to file an affidavit of .Naib‑Tehsildar‑Rejection of power‑of‑attorney and in consequence written statement filed by them through attornies was not warranted by law‑written statement, in any case, could have been treated as written statement of attornies who were themselves defendants in suit Such illegal action of Assistant Commissioner, therefore, seriously prejudiced such defendants in suit.
--‑ S. 85‑Provisions of S. 85, Evidence Act, 1872, held, were not mandatory.
‑‑‑ Ss. 3(2) & 4‑Civil Procedure Code (V of 1908), O. V, r. 20 Provisional Constitution Order (1 of 1981), Art. 9‑Substituted service‑Deputy Commissioner or Assistant Commissioner exercising powers of Deputy Commissioner, held, was entitled to press into service provisions of O. V, r. 20, Civil Procedure Code, for subs tituted service.
Siraj Din v. Mst. Iqbal' Begum P L D 1968 Lab. 639 ; Samundar and 17 others v. The Crown P L D 1954 F C 228 ; Firdaus and another v. Pakistan P L D 1961 (W. P.) Pesh. 165 ; Afsaruddin shuiyan v. Wazed Ali: Khan and another P L D 1955 Dacca 209 ; The Tariq Transport Company, Lahore v. The Sargodha‑Behera Bus Service, Sargodha and 2 others P L D 1958 S C (Pal: 4.37 and Haji Sultan Muhammad v. Haji Syed Taj Muhammad and 4 others P . D 1977 Quetta 39 ref.
Ayub Khan and another v. Fazal Haq and others P L D 1976 S C 422 rel.
‑‑‑ S. 4‑Provisional Constitution Order ( I of 1 981 1. Art. 9‑Suit for declaration‑Deputy Commissioner or Assistant Commissioner exer cising power of Deputy Commissioner under Ordinance, held, was to decide question of limitation and was also to decide whether dis pute disclosed in suit was a dispute o: nature covered by Ordinance and whether related to area to whist; Ordinance was applicable Decisions on sari issues were more akin to judicial in nature than administrative.
‑‑ S. 4‑Provisional Constitution Order (1 of 1981), Art. 9‑Civil . Procedure Code (V of 1908), O. V, r. 20‑Substituted service‑Ex parte order‑Plaintiffs and defendants in suit inter‑related and residing in same area‑No report on record shown before Assistant Commissioner to effect that defendants were avoiding service of notice‑Defendants on contrary voluntarily appearing and making abortive attempt to file written statement through joint attornies, two of whom also defendants in suit‑Assistant Commissioner, held, was not justified to press into service‑Provisions of O. V, r. 20, Civil Procedure Code‑Court before passing an order for substituted service, should advert to question whether defendants were avoiding service and whether it was not possible to effect service by ordinary mode‑Substituted service, being not warranted by facts .of case, ex parte order passed in consequence and all subsequent orders passed on basis thereof were illegal and unsustainable‑Order set aside and case remanded.
‑‑ S. 3‑Civil Procedure (Special Provisions) Ordinance (I of 1968), S. 4‑Limitation‑Party not served with a notice properly, can urge that limitation is to start from date of his knowledge.
Abdul Qayyum Khan v. Main A. M. Said and 4 others P L D 1975 Lah. 707 and Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies P L D 1964 S C 97 rel.
‑‑ S. 4 ‑'Knowledge of proceedings' and knowledge of date of order'‑Distinct‑Party may have knowledge of proceedings against him but he is not obliged to put in appearance unless he is served with a process in accordance with law.
Art. 9 ‑Civil Procedure (Special Provisions) Ordinance (I of 1968), S. 4‑Constitutional jurisdiction ‑Exerciseable in aid of justice and not in aid of injustice‑High Court even in a case where order may be irregular or illegal would decline to exercise Constitutional jurisdic tion, in case, if exercise thereof would result in miscarriage of justice or would allow a party to retain an ill‑gotton gain.
Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236 and Tufail Muhammad and others v. Raj,, Zia Ullah Khan, Claims Commissioner, Lahore and another P L D 1965 S C 269 rel.
Basharatullah for Petitioners Nos. 1 to 21.
Muhammad Aslam Chishti for Respondents Nos. 1 to 46.
Respondents Nos. 48 and 49 in person.
Respondent No. 50 : Ex parse.
Dates of hearing : 23rd, 24th September and 7th October, 1985.
‑This petition is directed against the orders, dated 16th June, 1982, 30th October, 1982 and 26th May, 1983 passed by the respondents Nos. 4, 49 and 50, respectively. The brief facts leading to the filing of the above petition are that the respondents Nos. 1 to 47 filed a suit on 18th June, 1981 in the Court of Deputy Commissioner, Sibi, who referred it to the Assistant Commissioner, Harnai under Ordinance I of 1968 (hereinafter referred to as the Ordinance') for declaration that the suit land measuring 16,010 rods and 36 poles (equal to 4,002 acres, 2 rods and 36 poles) entered at Khewat No. I, Khatuni Nos. I to 25, situated in Mahal Khushkaba Tangi Mauza Tangi, Sub‑Tehsil' Ziarat, was a 'joint property of the petitioners/defendants and the respondents/plaintiffs and that the same was liable to be partitioned as per revenue record. The latter summoned the defendants for 28th July, 1981. Asad Khan, petitioner No. 12 in the Original petition arid Abdul Hakeem arid Abdul Razaq, petitioners Nos. 35 and 36, respectively in the original petition filed written statements. The case fixed for was service on 24th August. 1981. It seems that on 19th August, 1981, certain petitioners/ defendants appeared before the Assistant Commissioner and requested for the copies of plaint. After that, 40 defendants executed a power‑of‑attor ney in favour of Abdul Marian, Abdul Manaf and Said Muhammad attested by Naib‑Tehsildar, Ziarat and the above Attornies filed a joint written statement on 15th December, 1981. However, the learned Assis tant Commissioner rejected the above power‑of‑attorney, so also the written statement and directed the petitioners/defendants to file separate written statements. After that, the petitioners;' defendants filed an. application under sections 17 and 18 of Ordinance II of 1968 for praying that the plaintiffs/respondents be restrained from meddling with the land. This was followed by an application by them before the Deputy Commis sioner requesting that the above suit and their above application may be consolidated and be disposed of together. The Assistant Commissioner sent the process for service on some of the aforesaid petitioners/defendants through Tehsildar, Ziarat who returned the same with the report that the notices may be served by publication. Thereupon, the Assistant Com missioner' ordered the publication of the notices for the unnerved' defendants in daily Urdu newspaper 'Mashriq', dated 7th June, 1982 for appearance on 16th June, 1982. On the latter date, the aforesaid petitioners /defendants did not appear. The Assistant Commissioner declared them as ex pane by an order, dated 16th June, 1982 and there after by a second order of the same date, constituted a Tribunal and refer red the matter to it for adjudication in terms of the Ordinance. The petitioners/defendants filed an appeal on 28th August, 1982 against the above order of declaring them as ex parse, dated 16th June, 1982. While the above appeal was pending, the Assistant Commissioner passed the decree on 8th September, 1982. The petitioners/defendants' appeal was dismissed on 30th October, 102. They went in revision, in which, refer ence was also made to the above final order. The above revision was also dismissed by a learned Member of the Board of Revenue by his afore said order, dated 26th May, 1983. It may be observed that the petitioners/ defendants did not file any appeal against the above final order, dated 8th September, 1982 passed by the learned Assistant Commissioner. After the dismissal of the above revision petition, the filed the present petition.
2. It may be pointed out that at the time of filing of the above petition, the petitioners Nos. 3 arid 16 in the unamended petition were already dead, whereas, about 22 petitioners were allowed to he dropped as they did not wish to continue as the petitioners, as according to the learned counsel for the respondents, they accepted the above decree of partition. The request of the remaining petitioners to transpose them as the respondents was‑rejected by this Court with the result that the present petition is now prosecuted by original 15 petitioners, out of 17 petitioners, though in the amended title, they are shown as 22 in number.
3. In support of the above petition, Mr. Basharatullah, learned counsel for the petitioners has urged as follows:‑
(i) That. since it was a suit for declaration in terms of section 42 of the Specific Relief Act. the same was not competent under the Ordinance ;
(ii) That as in fact, the respondents were seeking partition of the land, the suit was barred by section 172 of the West Pakistan Land Revenue Act ;
(iii) That the Assistant Commissioner was not justified in rejecting the power‑of‑attorney in favour of aforesaid three persons, namely, Abdul Marian, Abdul Manaf and Saeed Muhammad, out of there, the first two were defendants themselves.
(iv) That since the provisions of C P. C. have not been made appli cable to the proceedings under the Ordinance and as the Assistant Commissioner is not a Court, he had no power to order substituted service ;
(v) That even otherwise, there was no justification to order for substituted service ;
(vi) That even if the petitioners were ex parte before the Assistant Commissioner, they were entitled to a notice from the Tribunal in terms of subsection (I) of section 8 of" the Ordinance; and
(vii) That the petitioner's appeal against the ex parte order was wrongly dismissed by the learned Additional Commissioner.
On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the respondents has raised the following preliminary objections :‑
(i) That since the petition was filed by the aforesaid three Attornies, in whose favour a fresh power‑of‑attorney was executed on 16th April, 1983 and attested on 9th May, 1983 and as one of the Attornies has withdrawn upon filing an application in this petition as an Attorney, the above petition has become incompetent, as there was no power in the above Power of Attorney to act severally ;
(ii) That since the original petition was on behalf of 47 petitioners and as at present, there are about 15 petitioners, who are supporting the petition, the above petition has become incompetent ;
(iii) That since the final order passed by the learned Assistant Commis sioner dated 8th September, 1982 was not challenged, either in appeal or revision, the same cannot be challenged in the present petition ;
(1v) That since the interim. order of ex parte. dated 16th June, 1982 stood merged into the final order, dated 8th September, 1982, the petition against the interim order is not competent; and that in the alternative, since the petitioners in their appeal and revision had prayed that the case be remanded .to the Tribunal for further proceedings, they bad acquiesced in the proceedings.
4. On merits, Mr. Aslam Chishti, learned counsel for the respon dents has contended as follows :‑
(i) That the suit for declaration was competent under the Ordinance ;
(ii) That the suit was not hit by section 172 of the West Pakistan Land Revenue Act ;
(iii) That the power‑of‑attorney was rightly rejected by the Assistant Commissioner ;
(iv) That the. Assistant Commissioner had the requisite power to order for substituted service ;
(v) That the order of substituted service was warranted by the facts of the case ;
(vi) That there was no legal requirement for the Tribunal to have served a fresh notice on the parties, who were declared as ex parte by the Assistant Commissioner ;
(vii) That since the appeal was admittedly time‑barred by about 12‑13 days, the same was properly dismissed; and
(viii) That the decree passed by the Assistant Commissioner does not take away any right of any of the parties as it merely declares that the parties are entitled to a partition according to the entries in the' revenue record and, therefore, this Court will not exercise Cons titutional writ jurisdiction as it will cause injustice, instead of fostering the cause of justice.
5. It may be pertinent to take up the preliminary objections raised by Mr. Aslam Chishti, learned counsel for the respondents first.
Adverting to Mr. Chisnti's submission that since one of the three Attornies has withdrawn himself from the above petition with the permission of this Court, the above petition has become incompetent, it may be observed that it has been pointed out by him that the Power of Attorney in question does not contain a clause empowering the three Attornies to act severally. It has, therefore, been pointed out by him that in the absence of an express power to act severally, the Attornies are to act jointly and since one of the Attornies has withdrawn himself, the above petition has become incompetent. Reliance has been placed on the following observation of the learned author appearing in the well‑known book, namely, Mogha on the Law and Principles of Conveyancing with Precedents (Pakistani Edition), page 95, which reads as follows :‑
Several Attorneys. If several persons are appointed, it is desirable to provide whether they are to act jointly or severally, as in the absence of an express provision authorising them to act severally, they will be entitled only to act jointly."
On the other hand, it has been contended by Mr. Basharatrillah, learned counsel for the petitioners that once a legal proceeding has been competently filed by the joint Attornies, the same does not become incom petent merely for the reason that one of the Attornies, does not wish to continue to act as the Attorney.
6. We are inclined to bold that the question, whether a legal pro ceeding has been competently filed, is to be determined with :‑[‑pence to the date on which the same was filed. In the instant case, admittedly, A the above writ petition was filed by the three Attornies jointly rind. therefore, it was competently filed. Any subsequent withdrawal by one or more Attornies would not render the above petition as incompetent. These effect of the withdrawal would be that in the absence of a clause in the power‑of‑attorney authorising the Attornies to act severally, the remaining Attorntes cannot continue to prosecute the legal proceeding, but the parties on whose behalf they were appearing jointly, would be entitled to prosecute the above proceeding competently filed. It may also be pointed out that the petitioners were represented by their Advocate whose Power was signed by 1B the three Attornies jointly. Till the time the above "Vakalatnama" is withdrawn with the permission of the Court, he continues to represent the petitioners.
7. As regards Mr. Chishti's submission that since the original petitions was filed by 47 petitioners and now it is being prosecuted by only about 15 petitioners, it may be observed that he has invited our attention to the fact that in the suit, the respondents/plaintiffs were claiming a declaration in respect of the suit land and, therefore, presence of all the co‑sharers as parties to the above petition, is must. It will suffice to say that even ones of the petitioners feeling aggrieved by the impugned orders could file the above petition. The petitioners were defendants in the suit and not the plaintiffs. The question whether an effective decree can be granted in the absence of any of the co‑sharers may be an issue in a suit for declaration of partition of the landed property, but in our view, this is not relevant in the present petition. Admittedly, the petitioners, who were parties to the suit have been impleaded as parties to the petition and the fact that sonic of them have withdrawn themselves to be the petitioners and the factum that the remaining petitioners' request to transpose them as respondents was declined by this Court, would not render the above petition as incompetent. The respondents having themselves opposed the remaining petitioners' request to transpose the petitioners who wanted to withdraw from the petition as the respondents are estopped from urging that the, has become incompetent because of the above petitioners not being parties to the above petition.
8. Reverting to the contention of Mr. Aslam Chishti, learned counsel, for the respondents that as the petitioners had not challenged the final order, dated 8th September, 1982 passed by the learned Assistant Commissioner in an appeal or revision, the same cannot be assailed in this petition, it May be observed that at the time when the above final order, dated 8th September, 1982 was passed by the Assistant Commissioner, the question whether the ex-Parte order dated 16th June, 1982 was justified was sub judice in an appeal. If the above appeal would have been allowed, the effect would have been that the above final order would have also been nullified as it was on the basis of the above ex parse order. It is true that the petitioners had not filed any appeal or revision against the above final order, dated 8th September, 1982, though they had referred the above final order in their revision, but this fact would not itself be sufficient to debar this Court from granting relief even against the final order, if the basic order on which it was basted, is to be held illegal.
9. Reverting to Mr Chishti's contention that since the above ex parte order stood merged into the final order, dated 8th September, 1982, the petitioners cannot assail the interim order, it may be stated that as pointed out hereinabove, the above ex parse order was sub judice before the Appellate Auto; pity at the time when the above final order was passed and the .revision was in consequence of the appeal. The present petition has also been filed as a result of the adverse orders passed by the Appellate and Revisional Authorities. The question, whether the above ex parte order was legal and proper remained sub judice throughout and, therefore, it cannot be urged that it cannot b: assailed in the present petition.
10. It may be appropriate to take up the contentions raised by Mr. Basharatullah, learned counsel for the petitioners, as the other sub missions of Mr. Chishti can be dealt with later on at the appropriate time.
11. As regards Mr. Basharatullahs submission that the suit for declaration for partition was not competent, he has relied upon the judg ment of a D. B. of this Court in the case of Mir Rehman Khan and others v. Sardar asadullah Khan and 14 others (P L D 1983 Quetta 52) in which, it was held that a suit for declaration in terms of section 42 of the Specific Relief Act is not competent under the Ordinance, as the word "Court" employed in the above section 42 does not cover an Assistant Commissioner or the Tribunal acting und...r the Ordinance. He has also referred to clause 18 of section 172 of the West Pakistan Land Revenue Act, 1967 to indicate that revenue Court has exclusive jurisdiction to grant relief of partition of agricultural land.
We are not inclined to dilate on the above submissions as we intend to remand the case and it will be open to the parties to advance their respective contentions. It may be observed that elaborate arguments were advanced by both the learned counsel for the parties for and against the view found favour with the learned Judges of a D. B. of this Court in the above reported case of 1983. The correctness of the above view can be examined in an appropriate case, but not in the present case.
12. As regards Mr. Basharatullah's submission that the Assistant Commissioner was not justified in rejecting the power‑of. attorney, it may be observed that the defendants Asad Khan, 'Abdul Hakeem sod Abdul Razaq, who were originally petitioners Nos. 12, 35 and 36, respectively filed] written statement on or about 28th July, 1981 (Annexures "B" and "C": to the petition), whereas the remaining defendants executed power‑of attorney in favour of Abdul Manan and Abdul Manaf, who were themselves defendants in the suit and one Said Khan, who was not a defendant on 20th August, 1981, which was attested try the Naib‑Tehsildar, Ziarat on o 12th December, 1981. The above Attornies filed a joint written statement on 15th December, 1981 though they were not served with any notice of the suit. But the Assistant Commissioner rejected the above written statement and the power‑of‑attorney on the ground that it was not attested by Magistrate and directed the above defendants to file separate written statements, which was not done. The ex parte order was passed o 16th June, 1982. The question, which requires consideration is, as to whether the rejection of the above power‑of‑attorney was warranted by law.
Mr. Chishti, learned counsel for the respondents was unable to cite any provision of law requiring the attestation of a Bower‑of‑attorney, (which is to be used in a legal proceeding) by a Magistrate. However, he hay referred to section 4 of the Powers‑of‑Attorney Act, 1882 and section 85 of the Evidence Act. The former section reads as follows :‑
"4. (a) An instrument creating a power‑of‑attorney its execution being verified by affidavit, statutory declaration or other sufficient evidence, may, with the affidavit or declaration, if any, lie deposited in the High Court within the local limits of whose jurisdiction the instrument may be.
(b) A separate file of instruments so deposited shall be kept, and any person may search that file, and inspect every instrument so deposited, and a certified ‑ copy thereof shall be delivered out to him on request.
(c) A copy of an instrument so deposited may be presented at the office and may be stamped or marked as a certified copy, and, when so stamped or marked, shall become and be .a certified copy.
(d) A certified copy of an instrument so deposited shall, without further proof, be sufficient evidence of the contents of the instrument and of the deposit thereof in the High Court.
(e) The High Court may, from time to time, make rules for the pur poses of this section, and prescribing, with the concurrence of the Provincial Government the fees to be taken under clauses (a), (b) and (c).
(f) This section applies to instruments creating powers‑of‑attorney executed either before or after this Act comes into force."
13. A plain reading of the above section indicates that the same is not mandatory. It is not necessary that every polder‑of‑attorney should be deposited in the High Court alongwith an affidavit or a statutory declara tion or other sufficient evidence as to its execution. The effect of the above section seems to be that if a power‑of‑attorney is deposited in the High Court in terms of above clause (a) of section 4, production of a certified copy thereof from the High Court without any further proof will be suffi cient proof of the correctness of the instrument. As regards section 85 of the Evidence Act, it may be mentioned that the same provides that the Court shall presume that every document purporting to be a power‑of‑attorney, and to have been executed before, and authen ticated by, a notary .public, or any Court, Judge, Magistrate (Pakistan) Consul or Vice‑Consul, or representative of the Central Government was so executed and authenticated. It is an‑ admitted position that Naib Tehsildar is a Third Class Magistrate and, therefore, falls within the ambit of the above section 85 of the Evidence Act. The aforesaid power of‑attorney, therefore, was factually attested by a Magistrate in terms of the above section. However, Mr. Chishti, has relied upon the following observation of the learned Author appearing in the Book "Principles and Digest of the Law of Evidence" by M. Munir, which reads as follows :‑
"Power‑of‑attorney.‑A power‑of‑attorney purporting to have been executed before and authenticated by any of the persons mentioned in this section must be presumed to have been so executed and authenticated. If the document does not purport to have b‑‑en executed before, and authenticated by, any of the persons mentioned in the section, there would. of course, be no presumption as to its execution and authentication. But the provision contained in section 85 is not of an exhaustive character, and other modes of providing the executions of a power‑of‑attorney are not excluded. Thus, the execution of a power‑of‑attorney may be proved by the production of an affidavit as to its execution made before a person competent to administer an oath. Authentication contemplated by the section does not merely mean attestation."
The above passage does not in any way support the contention of Mr. Chishti, learned counsel for the respondents. On the contrary, it indicates that if a power‑of‑attorney is not executed and authenticated, before the persons named in the above section 85, even then, it can be proved by production of an affidavit as to its execution made before a person competent to administer oath.
In the instant case, if the Assistant Commissioner was not satisfied a to the execution of the power‑of‑attorney for the reason that it was attested subsequent to its execution, the only course for him was to ask for further evidence for its execution or to have asked the said defendants to file an affidavit of the Naib‑Tehsildar. The rejection of the above power of‑attorney and in consequence the written statement filed by them through the attorney was not warranted by law. It may also be pointed out that in any case, the above written statement could have been treated as the written statement of Abdul Manan and Abdul. Manaf, who were themselves the defendants in the suit. The above illegal act on the part of the Assistant Commissioner has seriously prejudiced the above defendant in the suit.
14. Adverting to the submission of Mr. 'Basharatullah, learned counsel for the petitioners that since the Code of Civil Procedure has not been made applicable to the proceedings under the Ordinance and as the Assistant Commissioner is not a Court, be had no power to order for substituted service, it may be observed that he has. referred to section 3 (2) of the Ordinance, which provides that "except as otherwise provided in this Ordinance, the provisions of the Evidence Act, 1872) and the Code of Civil Procedure, 1908 (V of 1908) shall not apply to any proceedings under this Ordinance". He has also referred to the following judgments :‑
(i) Siraj Din v. Mst. Iqbal Begum P L D 1968 Lab. 639, in which, a D. B. of the erstwhile High Court of West Pakistan held that provisions of Order V, rule 17, C. P. C. are technical and penal in nature and were not applicable to a proceeding before a Rent Con troller under the late West Pakistan Urban Rent Restriction Ordi nance, 1959, as. section 16 of the Ordinance refers to Order XVI, C. P. C. only.
(ii) Samundur son of Jullundar and (l7 other petitions) v. The Crown P L D 1954 F C 228. In the above case, the petitioner had challenged the proceeding under the F. C. R. (III of 1901). The Honourable Federal Court while dealing with the appeal filed by the accused observed that the proceedings under the above Regulation were not to be regarded as proceedings in justice, but they are from every point of view to be regarded as proceedings before an adminis trative agency, specially provided for the settlement of criminal causes. It was also observed that the cases bear resemblance in several respects to the reported case of Moses v. Parker (L R 1896 A C 245).
(iii) Firdaus and another v. Pakistan P L D 1961 (W. P.) Pesh. 165, in which, a Full Bench of the erstwhile High Court of West Pakistan while construing section 11 of the F. C. R. observed that the mode of inquiry by a Jirga is not regulated by laws ; a Jirga unlike a criminal Court is both investigator and Judge; it not only hears evidence but it also discovers evidence."
On the other hand, Mr. Aslam Chishti, has referred to the following judgments :‑
(i) Ayub Khan and another v. Fazal Haq and others P L D 1976 S C 422, in which, the Hon'ble Supreme Court held that service by affixation under Order V, rule 17, C. P. C. was not penal and was applicable in a proceeding before the Rent Controller under the late West Pakistan Urban Rent Restriction Ordinance, 1959. The above Lahore judgment in the case of Siraj Din v. Mst. Iqbal Begum, P L D 1968 Lab. 639 was expressly overruled.
(ii) Afsaruddin Bhuyian v. Wazed Ali Khan and another P L D 1955 Dacca 209. In the above case, a learned Single Judge of the Dacca High Court held that a District Judge 'or a subordinate Judge deciding an Election Petition under the Bengal Local Self‑Government Act (III of 1885) is not a persona designata but a Court within the meaning of section 115 of the Code of Civil Procedure. The learned Single Judge also discussed elaborately the meaning of the word 'Court'. In brief Court' has been defined as two things; (i) a place where justice is administered and (u) a person who administers it.
(iii) The Tariq Transport Company, Lahore v. The Sargodh‑Bhera Bus, Service, Sargodha and 2 others P L D 1958 S C (Pale.) 437, in which; the Honourable Chief Justice of the Supreme Court, who had delivered the above judgment discussed the distinction between a judicial act and a quasi‑judicial act or the administrative act and observed that "a Tribunal acts judicially in the full sense of the terms if (1) it has to determine a dispute ; (2) the dispute relates to a right or liability which, whatever its immediate aspect. is ulti mately referable to some right or liability, recognized by the Cons titution or statute or by custom or equity which by the domestic law is declared to be the rule of decision ; (3) since every right or liability depends upon facts, the Tribunal is under an obligation to discover the relevant facts; (4) the ascertainment of the facts is in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by his opponent. and (5) after an investi gation of the facts and hearing legal arguments the tribunal renders a judgment which so far as the Tribunal is concerned terminates the dispute".
(iv) Haji Sultan Muhammad v. Haji Svtd Taj Muhammad and 4 others P L D 1977 Quetta 39. In the above case. a learned Single Judge of this Court while construing sections 3, 4 and 5 of the Ordinance observed that a Deputy. Commissioner's duty is to examine the case before referring it to the Tribunal to ascertain, whether the case is referable and that only the dispute covered by meaning assigned to it alone to be referred to the Tribunal for decision and not all disputes. It was also held that the Deputy Commissioner is also bound to determine by preliminary examination if the dispute falls within the category of dispute or not.
15. Without expressing ourself as to the correctness of the view found favour with the learned Judges of the D. B. in the above case of Mir Behmaa Khan another v. Sardar Asadullah Khan and 14 others P L D 1983 Quetta, 52 that a Tribunal is not a Court in terms of section 42 of the Specific Relief Act, we are inclined to hold that a Deputy Commis sioner or‑ Assistant Commissioner exercising the cowers of Deputy Commissioner ‑ in terms of section 4 of the Ordinance, is entitled to press into service the provisions of Order V, rule 20, C. P. C. for substituted service on the analogy of the above Supreme Court case of Ayub Khan and another v. Fazad Haq and other P L D 1976 S C 422, in which, it was held that provisions of Order V, rule 17, C. P. C. can be pressed into service by a. Rent Controller, though under section 16 of the late West Pakistan Urban Rent Restriction Ordi nance, 1959, only Order XVI, rule 10 was made applicable, whereas under the Ordinance similar provision is contained in section 9 which confers the power on the Tribunal which are vested in a civil Court trying a suit under the Code of Civil Procedure in respect of enforcing attendance of any witness or production of any document or other thing. It may be pointed out that under subsection (2) of section 4, a Deputy Commissioner or an Assistant Commissioner exercising the powers of Deputy Commissioner under the Ordinance, is to decide the question of limitation. He is also to H decide, whether the dispute disclosed in the suit before him is a dispute of the nature covered by the Ordinance and whether it relates to the area to which the Ordinance is applicable. The decisions on the above issue and more akin to judicial in nature than administrative.
16. This lead us to the question, whether in the instant case, the Assistant Commissioner was justified in reporting to the substituted service. It is an admitted position that the plaintiffs and the defendants in the suit were inter se separated and are residing in the same area. There was no report before the Assistant Commissioner to the effect that the said defendants were avoiding service of notice. On the contrary, the above defendants voluntarily appeared and made abortive attempt to file written statement through the aforesaid joint Attornies, two of whom were also the defendants.
In this view of the matter, the Assistant Commissioner was not justi fied to press into service the provisions of Order V, rule 20, C. P. C. It is a well‑settled principle of law that before passing an order for substitu ted service, the Court should advert to the question, whether the defendants are avoiding service and whether it is not possible to effect service by ordinary mode. Since the substituted service was not warranted by the facts of the present case, the above ex parse order passed in consequence thereof, was also illegal.
17. As regards Mr. Basharatullah's submission that even if the defen dants were ex parte before the Assistant Commissioner, they were entitled to a notice from the Tribunal, it may be observed that he has referred to subsection (1) of section 8 of the Ordinance, which provides that for the purpose of coming to . a finding on the matter or issue referred to a Tribunal, it should give opportunity to the parties to appear before it and take or hear in such manner as it may think fit such evidence adduced on behalf of the party or as may be called for by the Tribunal. He has also referred to subsection (2) of section 8 of the Ordinance, which lays down that the Tribunal shall give the ' parties an opportunity examining the witnesses deposing against them.
On the other hand, Mr. Aslam Chishti, learned counsel for the respon dents has contended that once an ex parte order has been legally passed by a Deputy Commissioner, or an Assistant for all the subsequent proceedings ensuing after the passing of the ex pare order, the defendants are not entitled to a second notice.
In our view, it is not .necessary to dilate on this question, as we have held that the above ex parte order passed by the learned Assistant' Com missioner was illegal..
18. As regards the dismissal of the appeal on the ground of limitation, it may be observed that it is an admitted position that the appeal was time barred by about 12‑13 days as ex parse order was passed on 16th June, 1982, whereas, the appeal was filed on 28th August, 1982. It has been urged by Mr. Basharatullah, learned counsel for the petitioners that since the ex parte order was illegal, limitation would start from the date of knowledge and not from the date of the order. It was also urged by him that since the above ex parte order was a nullity in law and coram non judice no limitation period was applicable.
On the other hand, Mr. Aslam Chishti, learned counsel for the respon dents has vehemently urged that the law of limitation does not provide separate limitation period for an ex parte order and, therefore, even if an ex parse order is made, limitation period would be applicable. It was also urged by him that the petitioners did not seek even the condonation of the above delay by the appellate Court and, therefore, the appellate Court was justified in dismissing the above appeal on the ground of limitation.
19. Mr. Basharatullah, learned counsel for the petitioners in support of his above submission has referred to the following cases :‑
(i) Abdul Qayyum Khan v. Mian A. M. Said and 4 others P L D 1975 Loh. 707, in which, a learned Single Judge of the Lahore High Court held that order passed behind the back of a party, limitation to start from the date of knowledge of the party. Reliance was placed on the case of Mahmood Alam v. Mehdi Hassan P L D 1967 Lah. 6.
(ii) Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97.‑In the above case, inter alia, the facts were that the date of hearing was subsequently declared as Court holiday, but the Court took the proceedings on the following day without notice to the defendant and on his failure to appear, ex parte order was passed. It was held by the Honourable Supreme Court that the order and decree passed ex parse were liable to be set aside.
20. It will suffice to observe that if a party is not served with the notice properly, he can urge that the limitation is to start from the date of his knowledge. In the instant case, it has been pointed out by Mr. Aslam Chishti, Advocate that the petitioners/defendants against whom ex parte order was passed, bad the knowledge of the proceedings, inasmuch as, they had voluntarily appeared through the Attornies and filed written statement on 15th December, 1981, which was not accepted by the Assistant Commissioner and, therefore, it cannot be contended by the petitioners/ defendants that they had no knowledge of the ex parte order. In this regard, it may be observed that there is a distinction between the know ledge of the proceedings and the knowledge of the date of the order. A party may ha a the knowledge of the proceedings against him, but he is not obliged to put in appearance unless he is served with a process of Court in accordance with law. The respondents/plaintiffs have not brought any material on record to indicate that factually the petitioners/defendants had the knowledge of the date of ex paste order when it was passed.
In this view of the matter, Mr. Basharatullah's contention that the limitation should have been computed from the date of the knowledge, is not unfounded.
21. Having dealt with the submissions made by Mr. Basharatullah, it may be appropriate to take up the remaining submissions made by Mr. Aslam Chishti, learned counsel for the respondents; plaintiffs.
Adverting to Mr. Chishti's contention that it will not be just and proper to exercise the Constitutional writ jurisdiction as the decree only grants a declaration to the effect that the co‑sharers are entitled to par tition according to the revenue record, it may be observed that he has referred to the following judgments :‑
(i) Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236.
(ii) Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan, Claims Commissioner, Lahore and Director of Enforcement, Evacuee Property and Claims, South Zone, Lahore P L D 1965 S C 269.
22. The ratio decidendi of the above cases seems to be that the writ jurisdiction is exercisable in aid of justice and not in aid of injustice and the Court even in a case where the order may be irregular or illegal, L declines to exercise Constitutional writ jurisdiction, in case, if the exercise of jurisdiction will result in miscarriage of justice or will allow a party t retain an ill‑gotten gain.
On the other hand, Mr. Basharatullah has pointed out that according to the respondent's plaintiffs' own averments in the plaint, the petitioners/ defendants have carried out improvements on the land, inasmuch as, they have dug wells and made the land cultivable and, therefore. keeping of the decree intact will cause injustice to the petitioners/defendants.
In our view, the above contention cannot be decided without having evidence on record. It, therefore, cannot be concluded that non‑exercise of the writ jurisdiction would foster the cause of justice.
23. It was then contended by Mr. Aslam Chishti that the petitioners/ defendants in their appeal as' well as in revision. memos. of which are on record, had prayed that the case should be remanded to the Tribunal for further proceedings and, therefore, they i.e estopped from contending that the Tribunal has no jurisdiction in view of the above‑reported judgment of P L D 1983 Quetta 52 or section 172 of the West Pakistan Land Revenue Act.
Since we have not dealt with the above contention of the learned counsel for the petitioners, it will be open to the respondents/plaintiffs to urge the above point before the Deputy Commissioner/Assistant Commis sioner/Tribunal.
24. In view of the above discussion, it is evident that ex parte order, dated 16th June, 1982 was not legal and therefore, all the subsequent 6 orders passed on the basis thereof, cannot be sustained. Reference may be made to the case of Yousuf Ali v. Muhammad Aslam Zia and 2 others (P L D 1958 S C (Pak.) 104) in which, the Honourable Supreme Court has been pleased to hold, inters alia, that if on the basis of a void order subsequent orders have been passed either by the same authority or by other party. the whole series of such orders together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded.
25. We, therefore, allow the above petition with no orders as to cost and declare the impugned orders as being without lawful authority and of no legal effect. The case is remanded to the Assistant Commissioner before whom the parties shall appear on 1st December, 1985. without further notice from him. In case of non‑appearance of any of the parties, the Assistant Commissioner shall be entitled to proceed with the case without any further notice. However, the parties who are no longer parties to this petition, but are parties in the suit, may be issued notice as co‑sharers for the above date of hearing. It will be open to both the parties to raise whatever legal pleas they wish to raise before .the Assistant Commissioner or the Tribunal.
M. Y. H. Case remanded.
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