2002 PLP 1350 (MLD)

Ch. Muhammad Zafar for Petitioner. Sh. Abdul Aziz for Respondent No.2. Date of hearing: 9th October, 2001. On 10‑3‑1983 the petitioner filed an ejectment suit against the respondent. The suit was not decided by the Assistant Commissioner‑I and was transferred to the Court of Collector, Sub‑Division, Kasur. It came up before the Collector on 18‑9‑1984 when he observed that he had not been able to decide the case within one month and since he is the Appellate Court as well, he proceeded to send back the case to Assistant Commissioner‑I. The suit was decreed on 31‑3‑1986 and ejectment order was passed. An appeal filed against this order was dismissed by the Collector on 29‑5‑1988. A revision filed by the respondent was dismissed by the Additional Commissioner (Revenue), Lahore Division on 8‑6‑1988. A second revision filed by the respondent was dismissed by a learned Member (Judicial‑II) on 22‑5‑1993. Thereafter, a review was filed by respondent No.2. The learned Member proceeded to allow this review on 20‑11‑1993 and to dismiss the suit of the petitioner on the ground that only the Collector could have tried the suit filed by the petitioner.

2. Learned counsel for the petitioner contends that the case of review before the Member, Board of Revenue is governed by the same limitations as are laid down under Order XLVII, rule 1, C.P.C. and that no case for review was made out and the learned Member 4as acted without lawful authority in passing the impugned order. Learned counsel for respondent No.2, on the other hand, says that a point of law can be raised at any stage and notwithstanding the fact that the said point was never raised throughout the proceedings, the order could have been reviewed by the learned Member.

3. I have gone through the copies of the records appended with this writ petition. I find that in this case the respondent, admittedly a tenant of the petitioner, proceeded to resist the suit stating that she had agreed to sell the land to him and a specific performance suit is pending. It is an admitted position that the said specific performance suit was dismissed and ultimately the Supreme Court of Pakistan upheld the dismissal. Reverting back to the proceedings of this case, it is true that the relevant rule 4(5) of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977 does provide that in case Assistant Commissioner‑I fails to decide the case within 60 days the case shall stand transferred to the Court of a Collector to be tried. Now in the present case, the matter in fact was transferred to the Court of Collector. However, the Collector in his turn found that he has failed to decide the suit within 30 days as mandated in the said rule 4(5) and according to his wisdom proceeded to remit back the file to the Assistant Commissioner‑I. What is to be noted is that at no stage of these proceedings the objection was raised based on the provisions of said rule 4(5). Learned counsel has referred to the case of Muhammad Raft and others v. Additional Commissioner (Rev.), Sargodha and others (1981 SCMR 1181) and Ashfaq Khalid and others v. Muhammad Hanif and 9 others (1988 SCMR 74) to urge that the impugned order is sustainable. I, however, find that in both the said cases it was the Commissioner who while hearing a regular appeal against the ejectment decree took cognizance of the violation of the said Rule and allowed the appeal of the tenant. In the present case, it is a matter of record that neither before the A.C.‑I at the time when the case was sent back to him, nor before the Collector or before the Commissioner or before the Member, Board of Revenue in the course of appeals and revisions any objection was raised on the said ground. There was, thus no question of any of the said Revenue Officer rendering a judgment or a finding on the said question which could be corrected in the review. The review was filed on a ground not at all urged before any of the Revenue Officer and as such there was no question of there being any error apparent on the face of record. In somewhat similar circumstances the Supreme Court of Pakistan in the case of Muhammad Hafeez v. Jalal Din and others (1981 SCMR 1171) the Hon'ble Supreme Court of Pakistan refused to take cognizance of the said defect in the proceedings because the objection was not raised at the proper time.

4. For all that has been discussed above, this writ petition is allowed and the impugned order, dated 20‑11‑1993 of respondent No.1 is set aside. No orders as to costs. H.B.T./H‑78/L Petition allowed.