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Civil Appeal No.12/Mzd of 1985, decided on 21st March, 1989.

(On appeal from the judgment of the High Court dated 12 2 1984 in Writ Petition No.27 of 1983).

S. 42 Occupancy tenants of land were allowed by Land Commissioner to deposit, specified rent, to extinguish interest of landlord Land Commissioner"s order vacated by High Court in exercise of Constitutional jurisdiction Leave to appeal was granted to examine whether without impleading legal heirs of one of the landlords, Constitutional petition before High Court, was competent; whether High Court was conferred with extraordinary powers under Art. 42 of the Interim Constitution Act, 1974, to determine validity of the orders passed on 1st of May, 1967 viz. prior to the date when the writ jurisdiction was conferred on the High Court; whether the Land Commissioner had legally exercised the discretion to extend the time to the occupancy tenants to make the deposit after the period fixed for the purpose and High Court was not legally justified to invoke the extraordinary jurisdiction to undo the discretion so exercised and; whether High Court in its Constitutional jurisdiction had exercised the discretion properly to hold that substituted service before the Land Commissioner was unwarranted under law.

- S. 42 Constitutional jurisdiction Competency with regard to a matter which attained finality prior to 1971 when for the first time writ jurisdiction was conferred on High Court Review petition against, Land Commissioner"s order dated 1st of May, 1967 was moved by one of landlords on 21 7 1979 which was disallowed Such review petition was whether a pretext to persuade High Court to exercise writ jurisdiction and High Court was thus not competent to decide an issue decided finally prior to 1971, when for the first time writ jurisdiction was conferred on High Court Case was remanded to High Court for decision afresh after consideration of above stated factum on joint request of counsel for parties and also because neither an authority of High Court nor of Supreme Court was to be found on those points Essentials for the remand order stated.

Gouranga Mohan Sikdar v. The Controller of Import and Export 1970 SCMR 323; Adamjee Jute Mills Ltd. v. The Province of East Pakistan PLD 1959 SC (Pak.) 272 and Raja Muhammad Niaz Khan v. Azad Government PLD 1988 SC (AJ&K) 53 rel.

Sardar Muhammad Sayab Khalid for Appellant.

Kh. Shahad Ahmed for Respondents.

This appeal, by leave, is directed against the order passed by a learned single Judge of the High Court on 12th of February, 1984. By this order, the learned Judge felt advised to vacate all the orders under which the respondents (occupancy tenants of the land) were allowed by the Land Commissioner to deposit the rent to extinguish the interest of the landlord.

2. Leave was granted to consider the following points:

"(i) whether without impleading the legal heirs of Muhammad Afsar, one of the landlords, the writ petition before the High Court, moved by Muhammad lqbal, non petitioner No.1, was competent

(ii) whether the High Court was conferred with extraordinary powers under section 42 of the Interim Constitution Act, 1974, to determine the validity of the orders passed on 1st of May, 1967, prior to the date when the writ jurisdiction was conferred on the High Court

(iii) whether the Land Commissioner has legally exercised the discretion to extend the time to the occupancy tenants to make the deposit after the period fixed for the purpose and the High Court was not legally justified to invoke the extraordinary jurisdiction to undo the discretion so exercised and

(iv) whether the High Court in its writ jurisdiction has exercised the discretion properly to hold that substituted service before the Land Commissioner was unwarranted under law."

3. To have clarity in the matter, we deem it proper to narrate in brief the facts of the controversy. The controversy has arisen in the following circumstances: The land in dispute measuring 7 kanals 18 marlas under survey No.738, situate in the area of village Dhamni, Tehsil Rawalakot, was in occupancy tenancy of Noor Muhammad and his three brothers, namely, Muhammad Hussain, Muhammad Afsar and Gul Muhammad. Muhammad lqbal, respondent No.l, was one of the landlords of the land. Under the provisions of section 25 of the Land Reforms Act, 1960, the Sub Assistant Land Commissioner required the occupancy tenants to deposit the rent within one year from the date of order. The order was recorded on the 26th of July, 1961, in presence of Noor Muhammad, one of the occupancy tenants, who is the appellant to this appeal. The occupancy tenants, it appears, failed to deposit the rent in compliance with the order of the Sib Assistant Land Commissioner and on the 5th of August, 1964, the Sub Assistant Land Commissioner, under the provisions of the Land Reforms Act, directed the landlords to deposit the rent in the sum of Rs.24.06 as compensation for payment to the occupancy tenants for extinction of their occupancy rights. The amount was deposited within the specified period.

However, on the 3rd of August, 1965, Gul Muhammad, one of the occupancy tenants, moved a revision petition before the Land Commissioner against the order of the Sub Assistant Land Commissioner dated the 5th of August, 1964. The Land Commissioner proceeded ex parte against Muhammad lqbal, respondent No.1, and finally was persuaded to set aside the order passed by the Sub Assistant Land Commissioner by allowing Noor Muhammad and his brother, the occupancy tenants, to deposit the amount of the rent within a period of one month from the date of the order. The order was made on the 1^st of May, 1967. Muhammad Iqbal, respondent, moved a review petition before the Land Commissioner seeking discharge of the ex parte order. The Land Commissioner disallowed the application on the 19th of June, 1983. Muhammad Iqbal then invoked the extraordinary writ jurisdiction of the High Court successfully and the High Court, as said earlier, vide order dated 12th February, 1984, quashed all the orders passed by the subordinate Courts in favour of Noor Muhammad and his brothers, the occupancy tenants. Hence this appeal, by leave, to assail the said judgment of the High Court.

4. The above history of the case would show that the basic order which was disturbed by the High Court in exercise of its writ jurisdiction was passed in revision, by the Land Commissioner on 1st of May, 1967, wherein Muhammad Iqbal, respondent herein, was proceeded ex parte. To avoid the ex parte order, Muhammad lqbal then after consuming a period of more than ten years, moved a review petition before the Land Commissioner on 21 7 1979, which was also disallowed on 19th of June, 1983.

5. Muhammad lqbal, thereafter, invoked the extraordinary writ jurisdiction of the High Court successfully and the High Court, as said earlier, vide order dated 12 2 1984, quashed all the orders passed by the subordinate Courts in favour of Noor Muhammad and his brothers the occupancy tenants.

6. The writ jurisdiction was invoked to undo an order passed on 1st of May, 1967, when the writ jurisdiction was not available to the High Court. The review petition later on moved, may be considered to provide a pretext to the High Court to exercise its writ jurisdiction.

7. The learned counsel for the parties, Mr. Sayab Khalid and Kh. Shahad Ahmed, made a joint request by moving an application that" the case may be remanded to decide the two points:

(i) whether the writ was competent with regard to a matter which attained finality prior to 1971 when for the first time writ jurisdiction was given to the High Court And

(ii) whether the review petition later on moved in the year 1979, was a pretext to persuade the High Court to exercise the writ jurisdiction and the High Court was thus not competent to decide an issue decided finally prior to 1971

The learned counsel submitted that since there is neither an authority of the Supreme Court nor of the High Court on these points, it would be advisable to remand the case back to the High Court to decide the matter afresh on the above reflected points of vital importance.

8. We have considered the arguments and are of the view that the arguments advanced have substance and the remand has become necessary for the following reasons:

(a) We have no authority either of this Court or that of the High Court on the points reflected above. Since the points are not only of vital importance but they are of first impression, it would be desirable to have the view point of the High Court on the points.

(b) It is always desirable that the Courts should pronounce their opinion on all the relevant points, which arise or have been raised in a case. We believe that it is the duty of the Courts to look into all the relevant points that arise, are raised or argued at the Bar, if the pleadings fairly agitate such a point. In the circumstances, omission on the part of the lower Court to decide the above-reflected points is a grave omission and cannot lightly be ignored. Especially the lapse on the part of the High Court to decide the vital point of extraordinary writ jurisdiction with regard to the orders which may have, attained finality is a substantial error showing misapplication of the mind of the High Court. In Gouranga Mohan Sikdar v. The Controller of Import and Export (1970 SCMR 323), Mr. Justice Hamoodur Rahman, Chief Justice (as he then was), considered the omission where the impugned order passed by the High Court did not disclose the application of the mind of the High Court to the merits of the case that was before it and relying on Adamjee Jute Mills Ltd. v. The Province of East Pakistan (P I. D 1959 S. C. (Pak.) 272), remanded the case with the observation:

"In view of the fact that a substantial question, was raised by the applicant invoking the writ jurisdiction of the High Court, it was, as observed by Munir, C.J., "the undoubted duty of the High Court to state what the precise point raised by the applicant was and the grounds on which it was rejected".

(c) The points left out to be decided are of vital importance. It would, therefore, be said that the omission had prejudiced the appellant"s case inasmuch as the possibility cannot be excluded that in case the learned High Court may have considered the points, the conclusion might be in favour of the appellant. The impugned judgment in ignoring for decide the important points referred to above has flouted the principles to be followed in deciding the matter. It is, in fact, a mistake floating on the surface of the judgment:

(d) It should be remembered that the judicial orders must be of the nature as to show that the Court has applied its mind to the resolution of all the material points involved and arising out of the controversy. In the instant case it appears that the learned Judge inadvertently lost sight to decide the aforesaid important points most probably due to the fact that they were not brought to the notice of the learned Judge, during the course of arguments.

9. No doubt, the Supreme Court has ample power to pass such orders as may be necessary for doing complete justice and may finally dispose of a case itself or remand the case to the lower Court for rehearing of the same according to the law anal for resolution of the points omitted by the Court. But in view of the importance of the points, we deem it proper to have the viewpoint of the High Court on the points omitted to be resolved. This view we owned in Raja Niaz Khan v. Azad Government PLD 1988 SC (AJ&K) 53) in which after dealing with the points elaborately, the case was remanded back. This view was reiterated in Muhammad Ayub Khan v. Chairman Inspection Team (Civil Appeal No.21 of 1987 decided on 18 2 1989) and we are not inclined to have, a different view in this case.

10. Whether there should be a remand in .a matter is always a judicious discretion of the Courts, which is to be exercised in accordance to the dictates of justice. The nature of the error committed and the possibility of the extent of prejudice to a person affected are all relevant factors to be fully weighed in a remand. We believe that the general rule is that an order for remand is proper when the hearing in the lower Court is defective. In the instant case the hearing is defective because vital points arising out of the controversy have not been decided in an objective way.

For the above stated reasons, we are constrained to accept the appeal, set aside the judgment of the High Court dated 12 2 19841 and remand the case back to the High Court for deciding the matter afresh on the points reflected above. Since the case stands remanded, the High Court will also be at liberty to have a different view of the points, which stand resolved by the impugned judgment. No order as to costs.

A.A. 256/S.C.A.

Case remanded.

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