1993 PLP 1304 (SCMR)

MUHAMMAD AFZAL ZULLAH, C.J.‑‑‑This appeal through leave of the Court in a pre‑emption matter is directed against the acceptance by the High Court of respondent's Constitutional (Writ) Petition against an order of remand. The leave was granted as follows:‑‑‑ "The petitioners' suit was dismissed , for non‑prosecution. Their application for restoration was also dismissed as barred by time. They failed 'in appeal before the Additional Commissioner but a learned Member, Board of Revenue accepted their revision and remanded the case for decision on merits in accordance with law. This order by designated revisional authority was set aside by the High Court in its Constitutional (Writ) jurisdiction. ' Learned counsel while seeking leave to appeal has raised the question: whether, the petitioners' application for restoration was barred by time or not depended upon findings of fact. The same having been rendered by the Member, Board of Revenue the designated authority, in favour of the petitioners, it is further contended the High Court should not have interfered with it in its discretionary Constitutional jurisdiction. Learned counsel has taken us through the order sheet. After the perusal of the same we feel that apart from legal contentions raised by the learned counsel, on careful examination of facts also the petitioner has good prima facie case to argue in so far as the question of limitation is concerned. Leave to appeal, accordingly, is granted." Neither any of the appellants nor their counsel having appeared, we have gone through the relevant record with the help of the learned counsel for the respondents' side. It goes to his credit that the counsel for the appellants being absent he remained absolutely fair in so far as the interests of the appellants are concerned. It is an admitted position that the appellants' suit stands dismissed till the present‑ stage on account of its dismissal for non‑prosecution and further on account of the dismissal of the application for restoration. The Board of Revenue in its revisional jurisdiction while setting aside the appellate order of the Additional Commissioner no doubt had taken into account some technical/legal features which were helpful to the appellants in so far as the restoration of the suit is concerned. But in pith and substance there was one underlying reason of merit as well in so far as the order of remand is concerned. It is that, the appellants' case had not been heard and decided on merits. It is one of the cardinal principles that so long as substantial justice can be done and there is no serious technical or legal impediment, the decision of controversies on merits stands at a much higher level than the disposal on the basis of legal technicalities and technical bars. Our perusal of the impugned judgment has revealed that the acceptance by the High Court of the respondents' writ petition was primarily for the reason that the learned Member, Board of Revenue had in his Revisional power set aside the appellate order only on the basis of legal technicalities. The following two observations in the impugned jud4jnent would suffice to bring out this point: "In the aforesaid background, learned counsel emphatically contended that learned Member, Board of Revenue seriously erred in directing remand of the case merely on procedural and technical defects, as such illegally assumed jurisdiction in the matter. ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ No doubt learned Member Board of Revenue in impugned judgment has tried to highlight procedural and technical legal defects, in the proceedings conducted before subordinate forums, but requirement of law and duty of plaintiff to pursue the matter vigilantly has been completely overlooked, ‑ ‑ ‑ ‑ ‑ ‑‑ ‑ ‑ ‑ ‑ ‑ . The plea that order of dismissal violated principle of natural justice and was void, thud would not be available to plaintiffs/respondents. ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑" While highlighting again and again the technical and legal aspects of the case which influenced the Board of Revenue, besides the question of substance as has been pointed out above, the High Court itself exercised discretionary writ jurisdiction and set aside the order passed by a designated authority in the hierarchy of special forums on legal technicalities. While we do agree with the observations by the High Court that the plaintiffs in this case should have been more vigilant and may be that they were rightly found amiss by the lower appellate forum as well as by the High Court, there was no compulsion, despite the technical infirmities in the plaintiffs case, to grant relief to the defendant in the discretionary writ jurisdiction of the High Court. The same consideration which prevailed with the High Court for setting aside the order of the Board of Revenue is enough to hold that in this case the High Court should not have exercised discretion on the basis of legal technicalities. And admittedly in pith and substance on merits, the equities in the case were in favour of the plaintiff/pre emptor as his case had not been tried on merits till the decision by the High Court at any stage. The High Court has also remarked in passing that the right of pre emption is a weak right, therefore, it was further assumed the Board of Revenue should not have exercised discretion in favour of the pre‑emptor. We do not agree with this approach in pre‑emption cases; particularly when we know that the basis for the right of pre‑emption in Islamic Law are as substantial as any other right. The old concepts in this behalf no more hold good in so far as the Constitutional dispensation based on Islamic foundations in Pakistan is concerned. See also Malik Hadayat Ullah v. Murad Ali Khan PLD 1972 SC 69 and Siddique Khan v. Abdul Shakur Khan PLD 1984 SC

289. In the light of the foregoing discussion this appeal is allowed. The impugned judgment of the High Court is set aside. There shall be no order as to costs. M.B.A./M‑1745/S Appeal allowed.