2004 PLP 1170 (MLD)

The brief facts out of which the present writ petition arises are that the petitioner challenged the vires of the order of respondent No.2 dated 3‑3‑1999 through this Constitutional petition.

2. Learned counsel of the petitioner submits that the petitioner was never served and the ex parte decision in the circumstances is not justified. He further submits that it is mentioned in the order dated 3‑3‑1999 that service of respondent No. 1 petitioner was effected through post which does not mean that notice was received to the petitioner. He further submits that the Chairman has decided the case as quasi‑judicial Tribunal and procedure prescribed under Order

5. C.P.C. for effecting service of summons and enforcing attendance of the parties is applicable but the impugned order was passed by the Chairman without adopting the method prescribed under Order 5, C.P.C, therefore, impugned order is hit by the principle of natural justice. He further submits that impugned order is without lawful authority as the same is passed in violation of the mandatory provisions of law. He further submits that nobody has entered appearance before the Chairman, therefore, impugned order passed by the respondent/ Chairman is arbitrary and passed in haste ignoring the provisions of law. The property in question was transferred in favour of the petitioner during the year 1988. The Administrator Evacuee Trust Property did not challenge the same before any higher forum. He further submits that presumption of truth is attached to the entries in the Revenue Record by efflux of time, which has attained finality. The land in question has been exchanged in so many hands and at present it has become a well developed area having modern facilities and displacement at such a belated stage, without notice, is not only harsh but unjust and unfair.

3. Learned counsel of the respondents submits that Constitutional petition is not maintainable, as the petitioner has filed revision petition before the Federal Government, which has been subsequently withdrawn as is evident from para. 3 of the contents of the writ petition. He further submits that respondent has passed the order after completing all the legal formalities and the service of the petitioner was effected as is evident from Annexures R‑2 and R‑3 attached with the written statement field by the respondents. He further submits that the Chairman passed the impugned order after application of mind with reasons; therefore, Constitutional petition is liable to be dismissed.

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

5. It is admitted fact that respondent No.2 has decided the controversy between the parties as a quasi judicial Tribunal under the provisions of law, Order 5, C.P.C. is applicable. It is better and appropriate to reproduce the operative portions of the Annexures R‑2 and R‑3 and section 21 of Evacuee Trust Properties (Management and Disposal) Act, 1975 to resolve the controversy between the parties:‑‑ "Section

21. Power of Chairman etc., as Civil Court.‑‑‑‑The Federal Government or any person authorized by it, the Chairman and every officer appointed under this Act shall, for the purposes of making any enquiry or hearing any appeal or revision under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely:‑‑ (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) requisitioning any public record from any Court or office; (d) issuing commissions for the examination of witnesses; (e) appointing guardians or next friends of persons who are minors or of unsound mind; (f) adding legal representatives of deceased applicants or claimants as parties; (g) restoration of cases dismissed for default; (h) substituting the names of the rightful claimants; (i) consolidation of cases; (j) any other matter which may be prescribed by rules made under this Act. (2) The Chairman and every officer appointed under this Act shall be deemed to be a Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898), and any proceeding before the Chairman or any such officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code (XLV of 1860) and for the purposes of sections 196, 199 and 200 thereof. " Mere reading of aforesaid section 21 of Evacuee Trust Properties! (Management and Disposal) Act, 1975 clearly reveals that Order 5 of, C.P.C. is applicable qua the proceedings initiated before respondent: No.2.: It is no doubt that Annexure R/2 reveals that notice was received by the petitioner on 29‑9‑1998 for 20‑10‑1998. The report of the Process Server was not on oath as required under the law, therefore, the service of the petitioner‑defendant was not in accordance with the mandatory provisions of law. In arriving to this conclusion, I am fortified by the following judgments:‑‑ Syed Mazhar Shah's case (1990 MLD 1070); Muhammad Ibrahim's case (1994 CLC 1994); Major Taj‑ud‑Din's case (1989 CLC 2183); Haji Karamat Hussain's case (1986 CLC 6) and Munshi Tamiz‑ud‑Din's case (PLD 1970 Dacca 483). It is pertinent to mention here that case was not decided by respondent No.2 on 20‑10‑1998. Mere reading of Annexure‑R/3 clearly reveals that it does not contain any sentence that petitioner‑defendant has received the notice, which is not in consonance in terms of Order 5, C.P.C. and the law laid down by this Court in Allah Bakhsh's case (1990 MLD 230). The relevant observation is as follows:‑‑ "The Process Server has nowhere stated in his report that copy of the summons was delivered to the defendant". And ex parte order was set aside by this Court in Allah Bakh's case supra. Merely on this ground which is applicable in this case in all force. It appears that respondent No.2 without application of independent mind has decided the case against the petitioner ex parte, which is not in consonance with the mandatory provisions of Order 5, C.P.C: read with section 21 of Evacuee Trust Properties (Management and Disposal) Act, 1975, therefore, ex parte order is not in accordance with the law laid down by the Superior Courts. In arriving to this conclusion, I am fortified by the law laid down by this Court in Mian Shabbir Ahmad's case (1991 CLC 1830). It is settled principle of law that it is duty of the Court/authority to observe the process prescribed in Order 5, C.P.C. where the Process Server is not examined in terms of Order 5, Rule 19, C.P.C. The summons is neither witnessed by any party from locality nor an affidavit given this is not valid service as the law laid down by Court to Feroz Khan v. Muhammad Shuaib (1994 CLC 1462). It is settled principle of law that an ex parte decree, in .spite of service of notice cannot be passed unless service effected through summons as the law laid down by this Court to Sanaullah Gill v. Mst. Elveena (PLD 1980 Lah. 668). It is also settled principle of law that where service of summons is dented and Process Server has nowhere stated in his report that copy of the summons is delivered to the defendants, presumption would be that defendant is not properly served. In arriving to this conclusion, I am fortified by the law laid down is Syed Mazhar Ali Shah v. Shah Muhammad (1990 MLD 230). Service by post generally would be that summons has duly been served on the addressee by registered post in view of Article 129(e) Qanun‑e‑Shahadat Order, 1984 read with section 27 of the General Clauses Act, 1897 but this presumption is rebutable as the law laid down in the following. judgments:‑‑ Pehalwan Khan v. Mrs. Najma Mujtaba (1986 CLC 1735); Khair Muhammad v. Akhtar Hussain (1983 CLC 302); L.C. De Souza, Cawnpore, In re Civil Miscellaneous Case No.714 of 1931 (AIR 1932 Allahabad 374); Emirate Bank International v. Dost Muhammad Cotton Mills (1993 MLD 54); Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others (1979 CLC 48) and Mst. Afzal Begum v. Y.M.C.A. through General Secretary (PLD 1979 SC 18). As mentioned above, in the present case, service of the petitioner- defendant is not effected in terms of Order 5 of C.P.C. read with section 21 of Evacuee Trust Properties (Management and disposal) Act, 1975, therefore, impugned order is not valid as the law laid down by the Superior Courts in the following judgments:‑‑ University of Dacca v. Zakir Ahmad (PLD 1965 SC 90) and Pakistan Chrome Mines v. The Enquiry Officer (1983 SCMR 1208). It is settled principle of law that principle of natural justice must be read in each and every Statute unless and until it is prohibited by the wording of the statute itself as per law laid down by the Honourable Supreme Court in Commissioner of Income Tax v. Fazal‑ur‑Rehman (PLD 1964 SC 410). In view of what has been discussed above, the impugned order is set aside and the Constitutional petition is accepted. It is settled principle of law that when the basic order is without lawful authority, then superstructure shall fall on the ground automatically as the law laid down in Crescent Sugar Mills and Distillery Ltd. Faisalabad v. Central Board of Revenue, Islamabad and 2 others (PLD 1982 Lah. 1), and Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104), therefore, notification dated 3‑6‑1999 is also set aside. Since the basic order is set aside on technical point, therefore, parties are directed to appear before respondent No.2 on 6‑5‑2004, who is directed to decide the case afresh as expeditiously as possible. In case the parties fail to appear before respondent No.2 on the said date then respondent No.2 is well within his right to proceed in accordance with law. M.H./M‑258/L Case remanded.