1991 PLP 1232 (SCMR)

Nemo for Respondent No.l. Iftikhar Muhammad, Advocate‑on‑Record for Respondent No.2. Date of hearing: 21st September, 1989. ALI HUSSAIN QAZILBASH, J.‑‑‑This is a petition for leave to appeal against the judgment of a learned Single Judge of the Balochistan High Court, dated 11‑6‑1988.

2. Land measuring 22 acres 32 ghuntas bearing survey Nos.104, 105 and 112 situate in Deh Hayat Khan, Tahsil Jhatpat, was allotted to the petitioner under the sale scheme of Land Reforms Regulation 64 of 1959. In 1971, the petitioner leased out the said land to Bakhsh Ali, father of respondent No.2, for a period of three years but in spite of the expiry of the lease period, the land was not vacated by Bakhsh Ali. After the death of Bakhsh Ali in 1976, the respondent continued to be in possession of the suit land.

3. On 4‑5‑1979, the petitioner filed a civil suit for declaration, mesne profits, possession and perpetual injunction. The suit was contested and in the written statement it was claimed by the respondents that the suit land had been sold through an oral sale to the father of respondent No.2 for consideration of Rs.1,

000. It was also contended by respondent No.2 that the matter was referred to arbitration in a criminal complaint under section 447, Cr.P.C. and by consent of the parties an award was given by Abdul Sattar Khan Khosa, a Wadhera, on 20‑6‑1972, in favour of respondent No.2. The suit was dismissed by the Civil Judge on 30‑9‑1987. It was during the pendency of the suit that the petitioner approached the Deputy Land Commissioner for the restoration of possession of the suit land but the application was dismissed on 17‑1‑1987 and the sale was cancelled from the name of the petitioner on the ground that the petitioner had violated M.L.R. 64 and the land was resumed to the Provincial Land Commission for disposal in terms of M.L.R.

115. The above order was challenged by both the parties before the Land Commissioner. The appeal riled by the petitioner was accepted by the Land Commissioner on 6‑5‑1987 whereby the order of the Deputy Land Commissioner was set aside. The relevant observation of the Land Commissioner has been reproduced in the judgment of the learned Single Judge in para.

7. The land was subsequently mutated in the name of the petitioner on 26‑11‑1987.

4. The petitioner feeling aggrieved from the order of the Civil Judge filed an appeal before the Additional District Judge. He also filed an application under Order XLI, Rule 27, C.P.C. for bringing on record the order of the Land Commissioner dated 6‑5‑1987. The order‑sheet of the file of the Additional District Judge, dated 31‑1‑1988, shows that the arguments had been addressed by the, parties on the main appeal as well as on the application for additional evidence. The appeal was, however, dismissed on 9‑2‑1988 and the revision of the petitioner before the High Court was also dismissed.

5. We have heard the learned counsel for the petitioner and the respondents who were on notice. The contention of the petitioner before the learned Judge of the High Court was that a proper application under Order XLI, rule 27, C.P.C. was filed before the appellate Court, it did take note of the same but in spite of the arguments addressed by the parties ignored it and did not adjudicate upon it and prayed that the case be remanded to the learned Appellate Court to decide the case in the light of the order of the Land Commissioner. This argument, however, did not find favour with the learned High Court, the ground being, amongst others, that the petitioner had failed to place the order of the Land 'Commissioner before the Civil Judge and that at a belated stage no grievance could be made of the fact that the Appellate Court did not consider the order of the Land Commissioner and further that no valid reason had been given in the application under Order XLI, rule 27, C.P.C. as to why the order of the Commissioner was not placed before the trial Court.

6. The same point has been urged before us. The learned Civil Judge while dismissing the suit of the petitioner mainly relied upon the order of the Deputy Land Commissioner whereby the land allotted in the name of the petitioner was cancelled. But this order of cancellation was set at naught by then Land Commissioner. As per the record, the petitioner sought to produce the same vide application made under Order XLI, rule 27, C.P.C., and we think that once the Appellate Court was seized of the matter, i.e. the application under Order XLI. rule 27, C.P.C., it ought to have adjudicated upon the same before disposing of the appeal. In support of his case, the learned counsel for the petitioner had rightly relied upon the decision of this Court reported as Amina Begum v. Ghulam Dastgir (PLD 1978 SC 220) wherein it was held:‑‑ "Indeed in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice:" Further, we do not find any negligence on the part of the petitioner in bringing to the notice of the trial Court the order of the Land Commissioner. The order of the Land Commissioner could not be brought on the file of the trial Court because the same was under review before the Commissioner and the final order was passed by him on 15‑10‑1987 when the matter stood decided in the trial Court.

7. In view of the above, we convert this petition into appeal and allow the same. The case is remanded to the Civil Judge, 1st Class, Nasirabad at Dera Allah Yar, to decide the matter afresh alongwith Suit No.80 of 1987 filed by respondent No.2 against the petitioner and while doing so the Court shall entertain the said evidence and other if necessary. There will be no order as to costs. AA./M‑1192/S Case remanded.