2022 PLP 308 (CLC)

MUHAMMAD NAEEM ANWAR, J.

This writ petition has been filed against the order of Member Board of Revenue-I dated 11.02.2021, whereby the revision petition filed by the petitioners was dismissed consequently, the order of Additional Commissioner, Bannu dated 24.09.2020, order of Deputy Commissioner Bannu dated 13.02.2020 and that of dated 17.10.2019 of Additional Assistant Commissioner, Bannu, dated 12.09.2019 of Deputy Commissioner, Bannu and dated 21.11.2019 of Deputy Commissioner Bannu were upheld. C.M.No.235-B/2021 and C.M.No.236-B/2021

2. Both these Civil Miscellaneous applications were filed by the respondents for placing on file record of the lower court which as per their contention is necessary for just and proper decision of main writ petition. This being the situation, both these applications are allowed and the documents annexed there with shall be read as part and parcel of the instant writ petition.

3. Requisite facts for disposal of the instant petition are that in suits filed by respondents for produce and recovery of possession, the present petitioners appeared and were directed for submission of their written statement however, for submission of their written statements they have sought adjournments on 07.11.2016, 16.11.2016, 28.11.2016, 13.12.2016, 27.12.2016, 11.01.2017 and 26.01.2017 when they have filed applications in each case for directing the plaintiffs/respondents to affix the proper court fee. Record shows that on 10.08.2017 and 30.08.2017 written statements were not filed and due to their absence, they were proceeded against ex-parte however, on 19.09.2017 an application for setting-aside ex-parte decree was filed. On 23.10.2017 when the learned Additional Assistant Commissioner, Bannu allowed the application for setting-aside of ex-parte proceedings and directed them to submit written statements positively on 27.10.2017 at the cost of Rs.500/- in each case. On 27.10.2017 notice under Order XVII, Rule 3 of the Code of Civil Procedure, 1908, was issued and due to non-compliance of the direction of the court by invoking provision of Order XVII, Rule 3 of C.P.C., their right of defense was struck off, evidence was recorded and the suit were decreed. Order of Additional Assistant Commissioner, Bannu was challenged by the petitioner through their separate appeals filed on 16.08.2019, but due to their absence appeals were dismissed in default on 12.09.2019. On 13.10.2019 applications for restoration of appeals were filed which too were dismissed for non-prosecution, therefore, applications for restoration of the applications for restoration of appeals were filed, which were allowed by the learned Additional Commissioner, Bannu through order dated 20.12.2019, however, on 13.02.2020, their appeals were dismissed being time-barred. The order of Deputy Commissioner Bannu dated 13.02.2020 was assailed through Case No. 17/2020 before Additional Commissioner Bannu which also met the same fate through order dated 24.09.2020. Being aggrieved from the order of Additional Commissioner, Bannu, the petitioners approached the Board of Revenue where their revision petitions were heard before Member-I, Board of Revenue, but were dismissed vide order dated 11.02.2021, hence, the instant petition.

4. Arguments heard; record perused.

5. All the orders in the instant petition revolve against the order dated 17.07.2019 by which ex-parte decree was passed and the suits of respondents/plaintiffs were decreed. It appears that order dated 17.07.2019 was appealed on 16.08.2019 before learned Deputy Commissioner, Bannu, however, the appeal of the petitioners was held to be barred by time on this ground not only the applications, but the appeal, revision petition and 2nd revision petition were dismissed. The only question requiring determination through instant petition is, as to whether the date of pronouncement of order passed by the learned Additional Assistant Commissioner, Bannu i.e., 17.07.2019 shall be excluded from counted? In accordance of provision Section 9 of General Clauses Act (X) 1897, the date of announcement of order shall be excluded and the time shall commence from the next following day of the order, this controversy has been laid to rest by the Hon'ble Supreme Court in case titled Messrs Malik Muhammad Nawaz, Haji Aziz Ahmad, Commission Agents, Chakwal v. Syed Mehmood Hussain (2002 SCMR 264) when it was held that by virtue of Section 9 of the General Clauses Act, period of one month for the purpose of an order is computed by excluding the date on which order is passed. Likewise, in the case of Messrs Tribal Friends Co. v. Province of Balochistan (2002 SCMR 1903) it was held that Section 9 of General Clauses Act prescribes a method for computation of period of limitation. The date from which any act has been ordered to be performed is excluded. In view of the dicta laid down by the apex Court the time shall commence from 18.07.2019 thus, the appeal of the present petitioners was filed on 30th day.

6. Furthermore, Land Revenue Act, 1967, provides period of limitation for appeal under section 162 by which sub-clause (a) of Section 162 provides 30 days when the appeal lies to Collector. Though learned counsel for respondents has taken certain objections regarding non-affixation of the court, inclusion of the date on which the impugned order was passed by making reliance on PLD 2020 SC 390, but it seems that in all the forums of revenue hierarchy time for filing of appeal was either overlooked or not properly calculated which on the face of it was filed on 30th day and as such the appeal of the petitioners was well within time.

7. Even otherwise the requires that lis between the parties must be decided on merits rather than on technicalities. Reference may be made to Case law reported as "Evacuee Trust Property Board through Assistant Director, Evacuee Trust Properties Gujrat v. Muhammad Siddique alias Bandoo and others" (1995 SCMR 1748), "Mir Mazar v. Azim" (PLD 1993 SC 332) and "Master Musa Khan and three others v. Abdul Haq and another" (1993 SCMR 1304). In the case of "Zohra Bibi and another v. Haji Sultan Mehmood and others" (2018 SCMR 762), it was held that technicalities should not hamper the administration and dispensation of justice. Whenever it is possible to grant a relief under the law, then technicalities in way of administration of justice should be avoided to the possible extent by remaining within the domain of law. In this respect, reliance can well be placed on case titled "Muhammad ljaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others" (2016 SCMR 1), "Zahid Zaman and others v. Khan Afsar and others" (PLD 2016 SC 409). When the legislature has provided the period of limitation as 30 days and when the appeal of petitioners was within period of limitation than the petitioners are entitled for adjudication and decision of their appeal on merits. Without discussing the merits of the case, lest it may prejudice the case of either side, this petition is allowed, the orders of MBR-1, Additional Commissioner, Deputy Commissioner, are hereby set-aside, the appeal of the petitioners shall be deemed pending before Deputy Commissioner, Bannu, who shall decide it after providing an opportunity of being heard to both the parties in accordance with law. ZH/218/P Petition allowed.