1989 PLP 124 (CLC)

"Noboby should be condemned unheard." He argued that as soon as the present petitioners knew about the ex parte order, they filed appeal against the order of the Revenue Officer in the Court of Collector with two other applications for condonation of delay and for staying the proceedings conducted against them at their back in the lower Court. The learned Collector, vide his order dated 26‑9‑1986, accepted the appeal and remanded the case with the direction that partition proceedings should be conducted afresh on. merits‑ in the case. Later on Abdur Rahim respondent No.l in the present petition, filed a second appeal to the Additional Commissioner, who accepted the appeal on two points.:‑ (a) That all legal formalities were completed for summoning the parties. Notices were also published in weekly "Kausar". (b) On the score of limitation and non‑condonation of delay in the submission of the appeal. The appeal before the Collector was timebarred and hence infructuous. On the point of limitation the counsel submitted that this application was filed alongwith the appeal and it was within the cognizance of the learned Collector. Once he disposed of the appeal, the limitation and condonation of delay was automatically solved. Cases cited: ‑ (1) Ruling of the Supreme Court in 1986 S C M R 170. (2) P L D 1966 W.P. (Lah.)

460. The present ,petitioners were not summoned as per law. No notice was served upon them. They were totally ignorant of the partition proceedings taken in the Court of Assistant Collector Ist. Grade. When it came to their knowledge that their interest is being injured, they rushed to tire Court of law. Requirement of law was not fulfilled, as far as the service procedure is concerned. Advertisement in the weekly 'Kausar' D.I. Khan which was a weekly with very limited circulation was not sufficient. It is a weekly paper which is generally not read in the area and therefore, the purpose of the law, that people should know that a certain case is under hearing in a Court, cannot be served by a notice published in the weekly 'Kausar' with limited circulation. The mode of service was so defective that even the person like Sanaullah Khan Gandapur an outstanding member of the Bar and Ismatullah a prominent councillor remained unaware about the summons issued by the Court. In the partition proceedings, the valuable right of the individuals was involved. As such the partition proceedings shall have been conducted strictly as per requirement of law on the subject. At page 3 of the decision of the Additional Commissioner, a portion of the judgment goes in favour of the petitioners. While concluding his arguments the learned counsel for petitioners vehemently requested for the acceptance of the Revision Petition, setting aside the order of the learned Additional Commissioner and restoration of the order of the Collector D.I. Khan. As against the above arguments, the counsel for the respondents submitted that the reasons given by the Additional Commissioner in his order dated 27‑9‑1983 are valid. While the partition proceedings were before the Assistant Collector Ist Grade Kulachi, the legal requirements for serving the summons and informing the parties through the weekly 'Kausar' were duly fulfilled. But the petitioners/ respondents deliberately avoided to attend the partition proceedings. Hence ex parte decision w‑as taken. Besides, the appeal against the order of the Assistant Collector Ist Grade, Kulachi in the Court of Collector D.I. Khan was timebarred. The order was passed on 20‑8‑1980 but the appeal was filed on 13‑11‑1980. Submission of appeal is late by 2 months and 23 days. The filing of appeal against the impugned order lies within 30 days, as per section 162 (a) of the Land Revenue Act, 1967. He argued that sections 5 and 2 of the Limitation Act, 1908 are not applicable to the present case. As such the delay cannot be condoned. The learned Collector was not competent to entertain the time‑barred appeal. He cited the case PLD 1978 Rev. 17, 28 and 41 and 1987 Supreme Court Monthly Review 1644, in support of his contention. In short, the counsel for the respondents vehemently argued that the learned Collector D.I. Khan has entertained a time‑barred appeal against the decision of the Assistant Collector Ist Grade, Kulachi. As such his order dated 26‑9‑1982 was without lawful authority and with no legal effect.. Besides, the Assistant Collector Ist Grade has fulfilled all the legal formalities to serve the summons on the petitioners and the respondents as per requirement of sections 24, 25 and 26 of the Land Revenue Act, but they deliberately avoided to attend the proceedings. Therefore, the plea of the Petitioners that the partition proceedings have been conducted by the Revenue Officer at their back, is incorrect and misleading. I have carefully heard the arguments advanced by both the Counsel for the parties and have thoroughly perused the record of the case. Prima facie, the learned Collector:, D.I. Khan has entertained a timebarred appeal without giving any reason for the condonation of delay. He has mentioned nothing about this issue in his order dated 26‑9‑1982, neither the respondents have pressed this point during the pursuance of the case. However, from the perusal of the record of the case, the appellants now Petitioners, have submitted an application for the condonation of delay with the reason thereof; they also requested for the staying of the proceedings of the lower Court but nothing has been done by the learned Collector while A disposing of the appeal. It reflects that the learned Collector has condoned the delay implicitly and passed an order dated 26‑9‑1982, whereby he has remanded the case to the lower Court for decision afresh on merits. The omission on the part of the Collector and the silence on the part of the respondents about the entertainment of the time‑barred appeal, shall not adversely affect the legal rights of the appellants, for no fault on their part. As regards the point of limitation it may be observed that there can be no condonation of delay under section 5 of the Limitation Act, when an appeal or application is filed under the provisions of R Land Revenue Act, 1967, which provides a special period of limitation of its own. Unless, therefore, the case is brought under one of the exemptions of Part‑III of the Limitation Act, which deals with computation of a period of limitation, the delay in filing an appeal or application for review cannot be excused by virtue of section 29 of the Limitation Act read with section 167 of the Land Revenue Act, 1967. The Petitioners in the present case have pleaded that the entire partition proceedings have been conducted in their absence. They have not been served with a proper summons and the mandatory provisions of the law as per sections 24, 25 and 26 of the Land Revenue Act have not been observed. The non‑observance of the legal formalities creates doubt that the proceedings have taken place in clandestine manner. The order passed by the Assistant Collector 1st Grade on 20‑8‑1980 is ex parte. The Petitioners have not been given any opportunity of being heard which is against natural justice "nobody shall be condemned unheard" Supreme Court Authority 26 of 1983 (sic). As soon as the Petitioners came to know about the order, they filed an appeal in the Court of Collector D.I. Khan on 13‑11‑1980 without any loss of time. They were, therefore, within time as limitation starts in such cases from the date of knowledge of an order and not from the date it was passed. The plea is not without substance. There was definitely an element of concealment of the facts about the partition proceedings as the mandatory provision of the law was not observed in summoning the parties. Imagine, the advertisement for the summoning. of the parties is given in a weekly paper 'Kausar' with very limited circulation. Summons to attend the proceedings are not being served on leading vakil of D.I. Khan Bar Council and a prominent Councillor of the area. All these facts tend to constitute a good ground on which exemption from limitation could be claimed under section 18 of the Limitation Act. The order dated 20‑8‑1980 of the Assistant Collector Ist Grade, when put to further scrutiny, reveals that the entire partition proceedings were conducted in the absence of the Petitioners whose very valuable rights of ownership in the landed property was involved. The order is ex parte. They have not been heard. As such it is against the established norm of natural justice. Hence the order dated 20‑8‑1980 is bad order and nullity in the eyes of law. Time limitation may not be running against the bad order. Hence the delay in submission of the appeal before the learned Collector shall not adversely affect the valuable rights of the Petitioners. Resides, the portion of judgment of the learned Additional Commissioner announced on 27‑9‑1983:‑ "This is true that the case of the partition applied for by the present appellant, was decided by the Assistant Collector Ist Grade ex parte .....Under the circumstances, the remand order of the learned District Collector D .I. Khan was not wrong but". also finds justification for the remanding of the case by the Collector D.I. Khan. By remanding the case, no injustice has been caused to any body. From the above discussion, it appears that order dated 26‑9‑1982 of the Collector D.I. Khan is sound and correct and has occasioned no injustice to any party. I, therefore, accept the petition, set aside the impugned order dated 27‑9‑1983 of. the Additional Commissioner, D.I. Khan and uphold the order dated 26‑9‑1982 passed by the Collector D .I . Khan. Parties to bear their own costs.