1992 PLP 639 (CLC)

Ghulam Rasool Chatha for Respondents Nos. 1 to

7. Abdul Aziz for WAPDA. Date of hearing: 21st March, 1990. This revision petition is directed under section 13 of the Consolidation of Holdings Ordinance, 1960 against the order dated 10‑6‑1987 of the Additional Commissioner (Cons.), Gujranwala Division, whereby he dismissed the appeal of the petitioners.

2. Brief facts of the case are that the consolidation of village Sagar Kalan, Tehsil Hafizabad, District Gujranwala was confirmed under section 10 (3) of the Consolidation of Holdings Ordinance, 1960, by the Assistant Consolidation Officer, Hafizabad on 29‑9‑1977. The respondents, feeling aggrieved, filed an appeal in the Court of Collector (Cons.) who vide his order dated 10‑2‑1983 dismissed it. The respondents went up in revision before the Additional Commissioner (Cons.) who vide his order dated 20‑3‑1983 remanded the case to the Collector (Cons.) who further remanded the case to the Consolidation Officer, Hafizabad, on 30‑10‑1985. The Consolidation Officer submitted his report to the Collector (Cons.) who disagreeing with the report of the Consolidation Officer amended the Khatas of the parties vide his order dated 10‑1‑1987. This order was assailed by the petitioners in the Court of Additional Commissioner (Cons.) who vide his impugned order dismissed the appeal holding that the petitioners at least had four different schemes, therefore, the petitioners should have filed separate appeals against the respondents but they had filed a joint appeal which was not permissible. Hence this revision petition.

3. The learned counsel for the petitioners contended that the petitioners' appeal against the order dated 10‑1‑1987 of the Collector (Cons.), Gujranwala was dismissed by the learned Additional Commissioner (Cons.) on technical grounds due to misjoinder of the schemes. On the other hand the learned Additional Commissioner (Cons.), did not consider that the respondents in their revision petition before him also misjoined the parties and the schemes. Hence discriminate treatment had been meted out to the petitioners. Misjoinder of schemes or parties should have been remedied by the learned Additional Commissioner (Cons.) under Order I, Rule 10 of the Civil Procedure Code‑ and the petitioners should have been asked to file separate suits/appeals for each scheme. The appeal should not have been thrown out of the Court. There was no provision to the contrary in the Consolidation of Holdings Ordinance and the learned Court below should have acted in accordance with the provisions of Civil Procedure Code.

4. The learned counsel for the respondents maintained, in rebuttal, that the petitioners had assailed six schemes in one appeal whereas the Board of Revenue had consistently held that separate appeals should be filed for each scheme. The respondents' scheme was only one hence the petitioners had not been discriminated against by the lower Courts.

5. Both the learned counsel also adverted to the respective merits of the case which need not be discussed here in view of the order which follows.

6. I have considered the arguments and perused the case record. The appeal was dismissed vide the impugned order on the sole consideration of misjoinder of parties. This defect was curable under the provisions of Order I, Rules 9 and 10 of Civil Procedure Code and the petitioners should have been advised to file separate appeals. The endeavour of the consolidation authorities and Courts should be to decide the cases on merits as far as possible rather than on technicalities as envisaged in Order I, Rule 9 ibid. I would, therefore, accept the revision petition, set aside the impugned order and remand the case to the learned Additional Commissioner (Cons.), Gujranwala Division for fresh decision after hearing the parties. AA./414/R Case remanded.