1998 PLP 1982 (MLD)

Ch. Subhan Khan for Respondents Nos. 13, 15 and

16. Ghulam Ali and Baqir Ali Respondents in person This Revision Petition calls into question the order of Additional Commissioner (Cons.), Gujranwala Division dated 5‑6‑1994 and of Collector (Cons.), Gujrat/Mandi Baha‑ud‑Din dated 6‑8‑1992.

2. The consolidation scheme of village Mangat Tehsil Phalia was confirmed by the Collector (Cons.), on 30‑6‑1983. The appeal was filed before the Additional Commissioner (Cons.), Gujranawala Division who twice remanded the case vide orders dated 3‑7‑1985 and 27‑11‑1988 to the Collector (Cons.). On remand the Collector (Cons.) further referred the matter to the Consolidation Officer for report. The Consolidation Officer reported' on 30‑8‑1990 that the parties were not interested in purusing the case which may accordingly be filed. The Collector (Cons.) vide his order dated 13‑9‑1990 consigned the case to the record room. After about one year and 8 months the present petitioner submitted an application to the Collector (Cons.) for rival of the case. The Collector (Cons.) dismissed this application vide order dated 6‑8‑1992 as being time‑barred. The Revision Petition against. this order was also dismissed by the Additional Commissioner (Cons.) vide impugned order dated 5‑6‑1994. Hence the instant Revision Petition.

3. Arguments of the counsel for the petitioner and counsel for respondents Nos.13, 15 and 16 have been heard and record perused. The other respondents did not turn‑up despite issue of notice and publication of proclamation in the newspaper and were, therefore, ordered to be recorded against ex parte.

4. The order of the Additional Commissioner (Cons.) remanding the case to the Collector (Cons.) had not been further challenged by any of the parties. It had, therefore, attained finality and basically it was responsibility of the functionaries of the Consolidation Agency to have ensured its compliance. There is nothing on record to show that the parties and in particular the petitioner had been served with any notice for appearance before the Consolidation Officer. Even the Collector (Cons.) did not summon the parties and consigned the case without hearing them. There is no question of limitation in cases where order adverse to the interest of the parties is passed in their absence and without their knowledge. In fact, the order of consignment of the case is not a determinative order and is least comparable even to the order of dismissal of the case for default. Limitation in such cases would be immaterial. In the same manner, the two lower Courts erred in holding that the application for restoration of the case was time‑barred, firstly, because the order of consignment was not a proper disposal of the case and, secondly the order of consignment having been passed in absentia the question of limitation was immaterial.

5. The fact that the proceedings for revival of the case are being pursued only by the present petitioner and no one else has come forward with such a request makes little difference. The petitioner is pursuing his legal rights and could not be denied relief simply because the other aggrieved parties are not his co‑associates. It is also urged that as many as 6 of the respondents have died but still been impleaded by name without bringing their legal heirs on record. This objection is purely of technical nature and is curable.

6. Considering all the aspects of the case I feel convinced on remand by the Additional Commissioner (Cons.) the petitioners' appeal had not been disposed of according to law and orders impugned before this Court do not come up to the standard of law and justice and are, therefore, unsustainable.

7. Accordingly the Revision Petition is accepted and the impugned orders of the Collector (Cons.) and Additional Commissioner (Cons.) are set aside. As a result, the petitioners' appeal against the confirmation of consolidation scheme will be treated as still pending before the Collector (Cons.) who shall decide it afresh on merits according to law and the directions contained in the remand order, after hearing of the necessary parties. H.B.T./89/R Revision accepted.