1987 PLP 222 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑ Muhammad Umar Khan and others respondents resident of Shahzadai village, Tehsil Balambat, District Dir challenged through a constitutional petition the judgments and orders of respondents Nos. 1 to 3, whereby the suit for possession in respect of land in dispute was dismissed by respondent No.1 and affirmed in appeal and revision by respondents Nos. 2 and 3 respectively.

2. Facts of the case giving rise to the present petition are; that the respondents and petitioners herein claimed that they were the owners in possession of the suit land during the rule of Nawab Shah Jehan Khan (the then Ruler of Dir). The Nawab, it is stated, that by way of policy used to extern from State sometime persons who according to his judgment were involved in Anti‑State Activities and in such a case the property of a person extern used to be entrusted to another party who was to retain it as care‑taker/trustee. In this context it is stated that father of the writ petitioners with other relatives were exiled from the State and their immovable property was entrusted to the predecessor in interest of respondents Nos. 4 to 15 as trustees. On the merger of the State in the Province of West Pakistan the petitioners herein brought a suit somewhere in the year 1961‑62 but the record of the case was burnt in the fire which took place somewhere in the year 1969. The Assistant Commissioner on 18th March, 1980 ordered that fresh plaint and written statement be filed. Consequently, amended fresh plaint was filed and defendants were directed to submit written statement. Before the date fixed for filing written statement the defendants therein applied to the Deputy Commissioner on 7‑5‑1980 on which an order was passed requisitioning the case file from the Court of the Assistant Commissioner and asking him to direct the parties to appear before him. On appearance of the parties he passed the impugned order on 19‑5‑1980 dismissing the suit. Appeal and revision were also dismissed against the impugned order.

3. The learned counsel appearing for the petitioner contended that in pursuance of the provision contained in sub‑clause (b) of clause 3 of Dir, Chitral and Swat (Administration) Regulation of 1969 issued vide Notification No. 29/47 Home (GAD)TA/69, dated the 5th December, 1970, Extra‑Assistant Commissioner is empowered to hear cases both criminal and civil on the original side while Deputy Commissioner/ Additional Deputy Commissioners are empowered to hear all cases in which orders have been passed by the Musheer/Sub‑Divisional Officer on the appellate side. Such being the case, the Deputy Commissioner has no power to give decision in the matter on the original side. It is further contended by the learned counsel Mr. Muhammad Aman Khan, that the suit was instituted before the enforcement of so‑called "Dastoorul Amal" Dir in the year 1963, its provision specially section 27 dealing with limitation was not applicable to the case.

4. The learned Judges of the High Court after hearing the parties observed: "After hearing the learned counsel for the parties and going through the record, we have noticed patent illegality and irregularity going into the roots of the case which warrants interference in constitutional jurisdiction. It is not denied that when the case was pending before the learned Assistant Commissioner for adjudication he observed that there was no proper plaint on the file, he, therefore, directed the plaintiffs to file an amended plaint‑‑‑‑‑" In same sequence, the learned Judges found that after the learned Deputy Commissioner had summoned the file from the Court of Assistant Commissioner, instead of getting written statement from the defendants he passed the impugned order dismissing the suit as barred by time under section 27 of 'Dastoorul Amal' Dir and the learned appellate and revisional Courts before whom objection regarding the jurisdiction of the Deputy Commissioner; not affording opportunity to lead evidence and limitation prescribed in para. 27 were raised but no decision was given on these important questions. The learned Judges further observed the question of limitation in this case a mixed question of facts and law which would require recording of evidence of the parties and the question as to what was the law of limitation applicable at the time of institution of the suit in such like cases, the effect and enforcement of "Destoorul Amal" are, therefore, left opened for decision by the Tribunal competent to give its decision in the matter after recording evidence.

5. This being the situation, we are inclined to agree with the learned Judges of the High Court that the matter requires complete examination in view of the various enactments promulgated by the Provincial Government in this behalf. It would also be in the interest of justice that the matter should go back to the competent forum for decision afresh on all the legal and factual questions involved in the case. Therefore, we would dismiss this petition with the direction that the matter be examined by the authorities concerned having jurisdiction in the matter and that all the questions involved shall be decided according to law applicable to the case. There shall be no bar to the parties to plead their case according to the provision of law. M.I. Order accordingly.