2005 PLP 1604 (YLR)

Muhammad Afzal Sindhu for Petitioner. Sultan Mehmood for Respondents. The brief facts out of which present writ petition arises are that the petitioner and respondent No.3 solemnized marriage in accordance with Injunction of Islam in December, 1996. Subsequently, the relationship between the spouses became, strained. Allegedly, respondent No.3 on the instigation of her parents left the house of the petitioner of her own free consent" started living with her parents. Respondent No.3 tiled a suit for maintenance against the petitioner before Chairman, Arbitration" Counsel' concerned at Gujranwala. The Chairman, Arbitration Council passed the ex parte decree against the petitioner on 25-5-1998, wherein the maintenance was fixed at Rs.8,000 per month. The petitioner being aggrieved filed revision petition before the Collector, Gujranwala, who dismissed the same for non-prosecution on 15-9-1999. On the same day, the petitioner filed an application for restoration of aforesaid revision, which was accepted on 22-9-1999. Subsequently the Revisional Authority decided the same on merit on 17 -11-1999. The petitioner being aggrieved filed this writ petition.

2. The learned counsel of the petitioner submits that respondent No.3 (wife) had knowledge that the petitioner is a Civil Servant and is performing his duties in Civil Secretariat, Lahore, but she mentioned the address of parents of petitioner in the suit therefore service of the petitioner was not effected and substituted service of the petitioner was effected through local newspaper, which is not circulated in Lahore therefore the ex Parte decree dated 25-5-1998 is without lawful authority and this fact was not considered by the Revisional Authority in Impugned order dated 17 -11-1999, therefore, the same is also not sustainable in the eye of law. He further submits that the petitioner is a Civil Servant and he is unable to pay maintenance allowance to respondent No.3 (wife) at the said rate awarded by the Tribunal below, while the salary of the petitioner is at Rs.6,408 per month and this fact was not determined by the Chairman, Arbitration Council, therefore, the impugned order is without lawful authority. He further submits that the petitioner came to know about ex parte decree dated 25-5-1998, when recovery proceedings have been initiated against him by the Tehsildar concerned, therefore, the petitioner has filed revision petition before the Revisional Authority within 'time after getting knowledge of the same, but this fact was also not considered by the Revisional Authority in the impugned order dated 17-11-1999, therefore, the same is not sustainable in the eye of law, In support of his contention, he relied upon" Saddar Zaman v.. Mst. Fauzia Bibi 1989 ALD 40(1). He further submits that both the impugned orders are not sustainable in the eye of law.

3. The learned counsel of respondent submits that the Chairman, Arbitration Council issued various notices at the address of the petitioner and after completing all the legal formalities, notice was published in the local newspaper, but the petitioner, did not enter appearance before the Chairman, Arbitration Council with mala fide intention, therefore, Arbitration Council was justified to pass ex parte order against the petitioner on 25-5-1998. He further submits 'that the petitioner did not attach a single document qua his salary along with grounds of revision petition before the Collector, therefore, pay slip attached by the petitioner with the Constitutional petition, be ignored on the well known principle that the parties are bound by their pleadings. He further' submits that the Revisional Authority dismissed the revision petition of the petitioner for non-prosecution and subsequently decided the same on merit on 17 -11-1999. Both the Courts below have given concurrent findings' 'against the petitioner, therefore, Constitutional petition is liable to be dismissed.

4. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.

5. It is better and appropriate to reproduce the certain facts in chronological order to resolve the controversy between the parties: 'The Chairman, Arbitration Counsel passed the ex parte decree against the petitioner on 25-5-1998. The petitioner preferred revision petition before the Revisional Authority allegedly after receiving the recovery proceedings 'by the concerned Tehsildar. The revision petition was dismissed for non -prosecution on 15-9-1999. The petitioner filed an application for restoration, of the same on 15-9-1999. The application was supported by an affidavit of clerk of learned counsel of the petitioner. The Revisional Authority passed order on 22-9-1999 and the same order reveals that case was adjourned for arguments for 13-10-1999. On the said date, the case was adjourned and fixed for 27-10-1999. On the said, date, the case was adjourned for arguments of learned counsel of the parties for 17-11-1999. The Revisional Authority dismissed the revision petition on 17-11-1999."

6. It is, also better and appropriate to reproduce the operative part of impugned order dated 17-11-1999 to resolve the controversy between the parties:- "I have heard both the parties at length. I have also perused the record carefully. The revision was filed on 15-9-1999 on account of non-persuasion by the appellant, as on that date the appellant or his counsel did not appear in the Court. This appears that the appellant had no interest in perusing of his revision. The contention of learned counsel for the respondent carries some weight. Rather the revision petition is time-barred. The order dated 15-9-1999 already announced cannot be recalled. The Tehsildar Gujranwala is directed to initiate recovery proceedings against the appellant. " Mere reading of the aforesaid operative part of the impugned order dated 17-11-1999 clearly reveals that the Revisional Authority has decided the revision petition of the petitioner without application of mind. In case, the impugned order and application for restoration be put in juxta position then it is crystal clear as mentioned above that the Revisional Authority has decided the case without judicial application of mind which is condition precedent after addition of section 24-A in the General Clauses Act. It is pertinent' to mention here that section 24-A newly added in the General Clauses Act is procedural' in nature, therefore" the same has retrospective effect, as per principle laid down by the Honourable Supreme Court in "Zainyar Khan's case" 1998 SCMR 2419. The mandate of section 24-A in the General Clauses Act is that the public functionaries have to decide the cases after judicial application of mind with reasons. The impugned order as mentioned above does not contain any reason, therefore, the same is not in consonance with the mandatory provision of section 24-A in the General Clauses Act, as per principle laid down by the Honourable Supreme Court in "Messrs Airport Support Service's case" 1998 SCMR 2268. The Chairman, Arbitration Council/Magistrate 1st Class, under the law is entitled to press into service the provisions of Order 5(20) of C.P.C. for substituted service. In arriving, to this conclusion, I am fortified by law laid down in "Hadayat-ullah's case PLD 1986 Quetta 107 and in "Hafiz Abdus Salam's case" PLD 2000 Pesh.

35. It is also alleged that citation was published in the local newspaper, which has also no circulation in the City, therefore, no effective service of the petitioner, had been, effected, as per principle laid down in "Ghulam Muhammad's case" 1987 CLC 1156. The reference can also be made in "Muhammad Faryad's case" PLD 1993 Lahore 469 and "Muhammad Akbar Sheikh's case" PLD 1996 Karachi

584. It is pertinent to mention here that the Revisional Authority has not considered the aforesaid allegation of the petitioner, therefore, the impugned order of the Revisional Authority is not sustainable by the eye of law. Coupled with the fact that both the parties did not bring on record newspaper to verify/consider the same keeping in view the aforesaid provisions of law and law laid down by the Superior Courts. This fact was also, not considered by the Revisional Authority in the impugned order. It is settled principle of law that judgments of the Superior Courts are binding on each hand every organ of the State by virtue of Articles 189 and 190 of the Constitution read with Article 201 of the Constitution. The Revisional Authority has decided the case' in derogation of law laid down by the Superior Courts, therefore, the impugned order is set-aside, meaning thereby, the revision petition filed by the petitioner shall be deemed to be pending adjudication before the Revisional Authority. In this 'view of the matter, the parties are directed to appear before the District Co-ordination Officer, Gujranwala on 7-3-2005, who is directed to entrust the case of the petitioner to the successor of Deputy Commissioner/Collector, Gujranwala, who is directed to decide the revision petition of the petitioner afresh in accordance with law preferably within four months, after receiving the order of this Court without being influenced by the observations of this Court after perusing the record in accordance with law. With these observations, the writ petition is disposed of. Copy Dasti on payment of usual charges. H.B.T./M-901/L Order accordingly.