1969 PLP 212 (SCMR)

ABDUS SATTAR, J.‑The appellant applied for a review of this Court's judgment dated the 27th of May 1965, by which his appeal was dismissed, The Review was admitted on the 17th of March 1966. The facts of the case are as follows. On the 25th of February 1955, the appellant purchased two shops and one house belonging to Hafiz Uris, father of respon dents Nos. 1 to 3 in an auction held by the Registrar of Co‑operative Societies under subsection (2) of section 59 of the Sind Co‑operative Societies Act, l925 (hereinafter called the Act). The possession of these properties was made over to the appellant on the 18th of May 1955. Respondents Nos. 1 to 3 filed two applications to the Provincial Government for setting aside the sale. The Provincial Government, by its order dated the 5th of July 1955, purported to have been passed under section 61‑1 of the Act, set aside the sale on condition that the respondents Nos. 1 to 3 would pay the dues together with upto date interest within one month of the date of receipt of the order. This order was passed without any notice to the appellant. Aggrieved by this order, the appellant filed a civil suit in the Court of the Subordinate Judge, Matli, against respondents Nos. 1 to 3 for a declaration that the Provincial Government's order setting aside the sale was illegal and ultra vires as it was passed without hearing the appellant. The suit was decreed. On appeal, however, the First Assistant Judge, Hyderabad, set aside the decree on the grounds that in the absence of the Provincial Government the appellant was not entitled to a finding that the order of the Government was without jurisdiction and further that the civil suit was incompetent because of section 64‑A A of the Act. Against this decision the appellant filed a second appeal in the High Court of West Pakistan, Karachi Bench. In the meantime the appellant also held a second suit against respondent Nos. 1. to 3, the Province of Sind and the Registrar, Co‑operative Societies Sind for tile same relief. This suit was decreed by the First Class Sub‑Judge, Hyderabad. Two appeals were filed against this decision. one by respondents Nos. 1 to 3 and another by the Province of West Pakistan and the Registrar of Co‑operative Societies. The appeals were allowed by the District Judge, 11,Hyderabad on the finding that the suit was barred by section 64-AA of the Act. From this judgment the appellant filed another second appeal. Both the second appeals were disposed of by a learned Single Judge of the High Court, who dismissed them. The appellant thereafter filed a writ Petition in which the order of the Provincial Government setting aside the sale was challenged. The writ petition was dismissed mainly on the ground that it would not be proper for the High Court to re‑hear a matter which had been heard by the ordinary Civil Court and the conclusions reached were taken up for consideration upto the High Court level and that if it were done there might be conflict of judicial views between Judges of the same Court which should be avoided. It was also found that the main order against which the writ petition was directed was passed 8 years ago and it would be wrong to grant any relief in exercise of the equitable jurisdiction of the Court. The appellant obtained special leave to appeal to con sider whether there was any likelihood of conflict of decision and whether vested rights had been interfered with without notice to the party. The decision of the High Court dismissing the petition was. upheld. The appellant then filed a review petition for reviewing the judgment of this Court. This was granted on the 17th of March 1966, as it was thought that the suits filed by the appellant having been dismissed on the ground of want of jurisdiction, any decision on merits could not be considered as final and that as the appellant bona fide pursued the remedy in the Civil Courts he could not be said to have been negligent in filing the writ petition. We have gone through the judgment in the second appeals. The learned Single Judge, after referring to the decision of this Court in the case of Zafrul Ahsan v. The Republic of Pakistan (P L D 1960 S C 113) observed as follows:‑ "It is therefore perfectly clear that the Civil Court is not entitled to interfere with a final order of a statutory authority merely on the ground that some irregularity was committed by the authority concerned in the exercise of its jurisdiction. The objection of the appellant in this case is in the nature of an irregularity and in my opinion on this ground alone the Civil Court could not interfere or disturb the impugned order." After the finding that the civil suits were not maintainable in view of section 64‑AA of the Act, the remark that the failure to hear the appellant before passing the impugned order amounted to only an irregularity is not a bar to the raising of the same question in a writ petition. The suits filed by the appellant failed because it was found that the Civil Court had no jurisdic tion to entertain them. So far as the ground of delay is concerned it appears that after the dismissal of the second appeals, the appellant filed an application for a certificate to file an appeal in this Court under Article 158 (P L D 1960 S C 113) (c) of the late A Constitution. This application was rejected on the 16th of March 1961. The writ petition was filed on the 22nd of March i.e. six days thereafter. In view of this it cannot be said that the appellant was negligent in filing the writ petition. On merit the point raised in the writ petition falls within the principle laid down by this Court, in the case of Dina Sohrah Katrak (P L D 1959 S C 45). The order of the Provincial Government setting aside the sale without hearing the appellant cannot be upheld. In the result the appeal is allowed. The judgment of the High Court is set aside and it is declared that the order dated the 5th July 1955, passed by the Government of Sind, was passed without lawful authority. Respondent No. 4, the Province of West Pakistan, is directed to dispose of the applications for setting aside the sale filed by respondents Nos. I to 3 after notice to the appellant. Parties are directed to bear their own costs. Appeal accepted.