P L D 1988 Supreme Court (AJ&K) 24 (PLP)

RAJA MUHAMMAD KHURSHID KHAN, C.J.‑‑This appeal, by leave, is directed against the judgment of the High Court, dated 12th of May, 1985, whereby the review petition moved by Saghir Iqbal, respondent herein, meant for the reconsideration and quashment of the judgment passed earlier on 14‑2‑1985 was accepted and consequently the aforesaid judgment was upset resulting in the acceptance of the writ petition moved by Dr. Saghir Iqbal, respondent herein.

2. Facts detailed below gave rise to the controversy: Plot No. 14/B‑3 (Part II) situated in the area of New Mirpur Town was in the first instance allotted to Dr. Saghir Iqbal, respondent herein. Aggrieved by this allotment Mirza Aslam Beg, 'appellant, rolled in an appeal before the Appellate Authority. During the pendency of the appeal, a Revising Authority was constituted for the disposal of such appeals. The Revising Authority, the appellant's case is, accepted his appeal resulting in the restoration of his allotment and cancellation of the allotment made in favour of the respondent.

3. The respondent, dissatisfied with the order of the Revising Authority, filed a writ petition in the High Court which was dismissed on 14‑2‑1985. The respondent then filed a review petition before the same Bench of the High Court which, vide order, dated 12‑5‑1985, accepted the review petition and the judgment earlier passed on 14‑2‑1985 was set aside. This appeal is meant to impugn the said judgment of the High Court.

4. We have considered the arguments addressed at the Bar. The learned single Judge in the High Court, the body of the judgment manifests, arrived at the conclusion that the allotment made in favour of Mirza Aslam Beg being bad in law cannot be sustained but in the concluding part of the judgment instead of accepting the writ petition, the learned. Judge, it appears, inadvertently dismissed the writ petition.

5. A review petition was filed and while accepting the same a new judgment to bring the concluding part in conformity with the body of the judgment was passed vide order, dated 12‑5‑1985. This judgment is under challenge in this appeal.

6. The learned counsel for the appellant, without adverting to the other points raised, argued that since the review petition had been decided without affording an opportunity of hearing to the appellant, the impugned order, being bad in law, is to be recalled. The omission on the part of the learned Judge in the High Court to hear the appellant, according to the learned counsel, violates the fundamental rule of 'audi alteram partem'. This lapse on the part of the learned Judge, the learned counsel contended, vitiates the judgment. This assertion of the appellant is duly supported by an affidavit on behalf of the appellant which has neither been controverted in the concise statement nor it has been repudiated by an affidavit by the respondent.

7. To adjudge the validity of the argument advanced by Ch. Muhammad Taj, we have looked into the High Court's file. The close examination of the interim order, dated 12‑5‑1985 makes us to believe that the submission of Ch. Muhammad Taj, the learned counsel, that the review petition was decided without hearing him, cannot be termed to be unfounded. On that date Raja Imdad Ali Khan, the learned Advocate for the petitioner (respondent herein) and Ch. Azam, Advocate on behalf of Ch. Taj, Advocate, are shown to be present and the judgment is said to have been announced. The entries 'Raja Imdad Ali Khan' and 'Ch. Azam on behalf of Ch. Ta' Advocate' and 'judgment announced' alongwith the words Camp Mirpur' an 'Judge' are typed. However, in between the lines we find insertion in the hand of learned Judge to the effect that 'Ch. Taj Advocate argued that no review lies. I heard him today".

8. The above writing in the hand of learned Judge, in the circumstances of the case, cannot be safely said to have been written prior to the announcement of the judgment. This view finds sufficient support in the fact that the grievance of Ch. Taj that he was not heard (duly supported by affidavit) has not been controverted by an affidavit by the respondent or his counsel. Raja Imdad Ali Khan, the learned counsel for the respondent, even in the Court has not seriously controverted the objection of Ch. Taj that he was condemned unheard while deciding the review petition.

9. In the circumstances, it cannot be said with certainty that the review petition was decided after hearing the learned counsel for the appellant. This uncertainty in the circumstances of the case is to be resolved in favour of the appellant.

10. It is settled principle of law that no one can be condemned unheard. This principle is to be read into the relevant law unless its application is excluded by express words. The duty .is cast even to the administrative Tribunals what to talk of the 'Courts' to act fairly and with due regard to the principles of natural justice unless specifically exempted from such limitation. Abdus Saboor Khan v. Karachi University and another P L D 1966 SC 536 owns this view.

11. It would, therefore, follow that an order affecting the rights of a party cannot be passed without giving an opportunity of hearing to that party. As said earlier the right 'to be heard' is not confined to the proceedings which are judicial in form. In fact the maxim 'no man shall be condemned unheard' extends to all proceedings which may affect the person or property or other rights of the parties concerned in dispute. An order passed without affording an opportunity of hearing to a party affected cannot be considered a valid order in the eyes of law.

12. In the instant case for the reasons recorded above, it appears that no opportunity was afforded to the appellant to advance arguments before announcing the judgment and it can safely be said that he has been condemned unheard.

13. Since such orders, being violative of the natural justice, are said to be orders without any force, we feel obliged to set aside the impugned order passed by the learned Judge. We thus, order accordingly. In consequence of the above, while setting aside the impugned order, we remand the case back to the High Court to decide the review petition afresh after hearing the parties. No order as to costs. M. B.A.12031A.SC Order accordingly.