1986 PLP 774 (MLD)

This petition under Article 98 of the Constitution of Islamic Republic of Pakistan, 1962 was filed to call in question the order, dated 14‑2‑1965 passed by the Chairman, Union Committee No. 10, Sialkot, respondent No.2 and the order of the District Judge, Sialkot, dated 27‑4‑1865 passed by him ad revisional authority under the Conciliation Courts Ordinance, 1961.

2. Facts necessary for the disposal of this petition are that respondent No.1 filed an application for the recovery of Rs.200 before the Union Committee No.10, Sialkot. Petitioner appeared on 17‑1‑1965 before the Union Committee and submitted written reply questioning its jurisdiction. Respondent No.1 had not appeared on that date and as such his application was dismissed by the Chairman. Respondent No.1 made an application (Annexure 'E') for restoration of his case on which petitioner was summoned for 7‑2‑1965 with a direction that he should bring his representatives with him. Petitioner appeared on 7‑2‑1965 but the Chairman of the Union Committee was not available. He, however, gave his written statement to the Secretary of the Union Committee wherein he denied the existence of any agreement /contract with respondent No‑1 and also questioned the territorial jurisdiction of Union Committee No.10 on the ground that property in respect whereof commission claimed by respondent No.1 was situated in Union Committee No.2 which alone had jurisdiction. Petitioner also took up the position that proceedings on the basis of alleged oral contract were not maintainable. Towards the conclusion of the statement, petitioner also made a request that he be given notice for the next date of hearing so that he could produce his representative.

3. It appears from the copy of the proceedings placed on the record of this petition as Annexure 'H' that after the petitioner left the Union Committee, Chairman came and passed an order on 7‑2‑1965 for summoning respondent No. l with evidence for 14‑2‑1965. No notice was, however, issued to the petitioner for the said date. Respondent No.1 is shown to have appeared before the Chairman on 14‑2‑1965 and made a statement that if the petitioner was prepared to take oath on the Holy Quran he would forego his claim. Petitioner, who was given no notice did not appear on 14‑2‑1965. He was, however, proceeded against ex parte. Proceedings were taken and concluded on the same date and decree for Rs.200 was passed against the petitioner on 14‑2‑1965 by Union Committee No.10. Petitioner filed a revision petition against this decree but the same was dismissed by the learned District Judge, Sialkot, vide judgment, dated 27‑4‑1965.

4. Learned counsel for the petitioner has raised the following contentions:

(i) That the property in respect of the sale of which commission was allegedly claimed by respondent No.1 was situated in Union Committee No.2 and that being so application for the recovery of amount in question, if at all maintainable, could be instituted before Union Committee No.2 and that the Union Committee No.10 which passed the impugned decree had no jurisdiction in the matter. (ii) That there was no written contract between the parties regarding the payment of Rs.200 as commission and that being so, Union Committee No.10 had no jurisdiction to entertain and try the, suit as Conciliation Court under the provisions of Conciliation Courts Ordinance. (iii) That the petitioner was not issued any summon/notice for 14‑2‑1965 on which date the petitioner was proceeded ex parte and the impugned decree was passed against him.

5. Territorial jurisdiction of Union Committee No.10 has been questioned on the ground that the property in respect of which commission was claimed by respondent No.1 was situate in Union Committee No‑2 and as such cause of action, if any, accrued to respondent No.1 within the jurisdiction of the said Committee. This objection was overruled by the revisinoal Authority by holding that since the parties resided within the jurisdiction of Union Committee No.10, it was possessed of necessary jurisdiction. The view taken by the revisional authority proceeds on correct legal principles. Petitioner' objection as raised has, therefore, no merit. Learned counsel for the petitioner, however, submitted with reference to a certificate (Annexure 'A') issued by Secretary Municipal Committee, Sialkot that the petitioner was resident of Mohallah Puran Nagar which fell within the jurisdiction of Union Committee No.2. Question as to whether Mohallah Puran Naga was within the jurisdiction of Union Committee No.2 or Union Committee No.10 is a question of fact which cannot be allowed to be agitated in writ jurisdiction particularly when this point as such was not taken by the petitioner before the revisional authority. Thus the finding of the learned revisional authority that Union Committee No.10 had necessary jurisdiction for the reason that the parties resided within its jurisdiction is not open to any exception.

6. Petitioner's next contention that the Conciliation Court could only entertain those suits which were based on contracts in writing and that in the present case. Conciliation Court had no jurisdiction for the reason that the claim agitated by respondent No.1 was oral, is supported by law and authority. The word "contracts" in clause I of section B of Part I of the Schedule attached to the Conciliation Court Ordinance has been used alongwith words, "receipts or other documents". That being so, the context in which the word "contracts" has bee used in the said provision indicated written contracts only. In Zamir‑ud‑Ahmad v. Havas Khan P L D 1965 S C 57, the word 'contracts was interpreted by the Supreme Court of Pakistan to mean written contracts. Peshawar High Court relying on the interpretation of the Supreme Court, held, in Mir Ahmad v. Karam Khan P L D 1974 Pesh.. 42 that in the absence of the written contracts, receipts or other documents, suit filed before the Union Committee was entirely incompetent because the suits based on the oral contract were not covered by the expression "contracts, receipts or other documents" appearing in clause 1 of section, B of Part I of the Schedule of aforementioned.

7. Respectfully following the aforementioned pronouncement of the Supreme Court and the view taken by Peshawar High Court in the judgment referred to above, I hold that the suit /application filed by respondent No.1 before Union Committee No.10 was incompetent. Consequently, the impugned decree passed by the Conciliation Court was without lawful authority.

8. Last contention raised on behalf of the petitioner that he was not issued any notice/summons for 14‑2‑1965 is also not without substance. In his written statement (Annexure 'G') given by the petitioner on 7‑2‑1965, he made a request that he be informed of the next date of hearing. Copy of the proceedings held by the Chairman on 7‑2‑1.965 and 14‑2‑1965 (Annexure 'H') do not disclose that any notice was given to the petitioner for the said date. That being so, ex parte proceedings could not have been taken against him on 14‑2‑1965. Consequently, proceedings taken and decree passed ex parte against the petitioner were without lawful authority.

9. For the foregoing reasons, this writ petition is accepted and the impugned decree, dated 14‑2‑1965 passed by Conciliation Court of Union Committee, No.10, Sialkot and the order, dated 27‑4‑1965 passed by the District Judge. Sialkot as Revisional Authority are declared to be without lawful authority and of no legal effect. As the respondent has not appeared to contest this petition, there will be no order as to costs. M.Y.H. Writ allowed.