1989 PLP 2213 (CLC)

TANZIIrUR‑REHMAN, J.‑‑By this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan the petitioner seeks the following reliefs:‑ (a) To declare the order dated 10‑3‑1987 passed by the learned respondent No.l as void ab initio, illegal, mala fide, without jurisdiction, having been passed without lawful authority, nullity in the eye of law and of no legal effect; (b) To declare the order dated 8‑4‑1980 passed by the learned respondent No.2 as void ab initio, illegal mala fide, without jurisdiction, having been passed without lawful authority, nullity in the eye of law and of no legal effect; (c) . (d) .

2. The facts giving rise to the above petition as stated in the petition are that the petitioner is owner of agricultural land viz. Survey Nos.59, 154 and 155 in Deh Kolab Jagir, Taluka Tando Muhammad Khan, whereas respondent No.3 claims to be the owner of agricultural land bearing Survey Nos.145 and 146 in Deh Kolab Rayati Taluka Tando Muhammad Khan. Respondent No.3 submitted an application on 5‑2‑1979 before the respondent No.2 (Director, Settlement Survey and Land Records Sind, Hyderabad) for demarcation of certain blocks of land mentioned in para. 3 of the petition. The petitioner also filed an application dated 11‑3‑1979 to the said respondent for demarcation of his Qabooli lands. The respondent No.2 on receipt of both the applications appointed M/s. Noor Muhammad Qureshi and Pandhi Khan as Inspectors to visit the site in presence of the concerned parties or their authorised agents and submit detailed report thereto regarding the demarcation. The said two Inspectors jointly visited the site in presence of the parties and prepared one and joint unanimous report of the survey of the lands m question. Respondent No.2 on receipt of the report heard the parties and passed an order dated 8‑4‑1980 whereby it was ordered that the boundaries of Deh map of Survey Nos.145 and 146 of deh Kolab Rayati, in the year 1910, be maintained and the subsequent Deh map of Survey Nos.59, 154, 155 and others of Deh Kolab Jagir which was prepared subsequently in the year 1942 be corrected accordingly.

3. The petitioner, aggrieved by the said order filed Revision application under section 161 read with section 164 of Sind Land Revenue Act, 1967 before respondent No.l (Senior Member, Board of Revenue Sind) which was admitted to regular hearing with notice to the other parties. The said revision application was adjourned from time to time and ultimately was decided ex parte by his order dated 10‑3‑1987 dismissing the same.

4. It is against this order that the above petition has been filed.

5. The only point which has been raised by Mr. S. Madad Ali Shah, learned counsel for petitioner, in support of the petition, before us is that the learned Senior Member Board of Revenue by refusing request of adjournment on 10‑3 1987 acted illegally. In the alternative it is submitted by the learned counsel the" the learned Senior Member Board of Revenue might have dismissed the matter in default and ought not have decided it on merits.

6. In order to appreciate the first contention that the order refusing adjournment was illegal we sent for the record and proceedings of the revision application which is before us. On going through the case diary it appears that the revision application was filed on 8‑5‑1980 before the learned Member Board of Revenue. The first date of hearing fixed in the matter is 14‑9‑1980 which was adjourned at the request of one Muhammad Ashraf Clerk of the counsel for the petitioner on filing adjournment application. Again on 9‑10‑1980 the Clerk of the counsel was present and the case was adjourned. On going through the case diary, as a whole, it appears that adjournments were sought by the learned counsel for the petitioner through his Clerk or the petitioner or his Junior Partner on various dates fixed for hearing viz 30‑1‑1983, 14‑3‑1983, 11‑3‑1983, 3‑7‑1983, 29‑3‑1983, 15‑9‑1985, 6‑4‑1986, 22‑7‑1986, 28‑10‑1986, 24‑11‑1986, 19‑12‑1986 and lastly on 10‑3‑1987 on the grounds that the learned counsel for the petitioner was busy in the High Court except one or two occasions when he was stated to be sick. Moreover, the impugned order dated 10‑3‑1987 shows that junior partner of the learned counsel was present on behalf of the petitioner on the crucial date i.e. 10‑3‑1987 and again made a request for the twelveth time for adjournment in the case as his senior who was to argue the matter was busy in the High Court. Mr.S.Madad Ali Shah has filed a copy of the cause list of the said date of the High Court which shows that a matter for Katcha Peshi was fixed before a learned Single Judge of this Court at serial No.18. The question is whether the order refusing adjournment passed by the learned Member Board of Revenue is illegal and without lawful authority. It is a settled law that the order granting or refusing adjournment is discretionary. Of course, the discretion should be exercised judiciously. The superior Courts, while exercising their jurisdiction under Article 199 of the Constitution of Pakistan have been reluctant m allowing petitions against the order passed by the lower Courts in matters falling within their discretion, as the Constitutional jurisdiction is intended to be invoked in cases where the orders are passed without jurisdiction or lawful authority. In this respect, we may refer to a decision of a D.B. of which one of us, namely, Tanzil ur‑Rehman, J was a member reported as Ali Nawaz v. The Member, Board of Revenue PLD 1989 Kar.373, relevant portion whereof is reproduced as under:‑‑ "As regards the contention of non‑affording opportunity to the petitioners by the respondent No.l while hearing revision, there appears to be no reference in the order as to the request for adjournment. Mr. Zaheer Hussain learned counsel for the tenants‑respondents, however, does not deny the making of an application for adjournment. He, however, submits that the attorney of petitioners made his submissions with regard to the case before the learned Member, Board of Revenue. This submission is borne out by the judgment of respondent No.l. Under the circumstances it cannot be said that the principle of natural justice has been violated. Moreover, the Constitutional jurisdiction is intended to be invoked in cases where the orders are passed without lawful authority. Discretionary orders such as rejecting request for adjournment by the Courts below or other functionaries unless found fanciful or arbitrary cannot be interfered with, in Constitutional jurisdiction. For this, reference may be made to Muhammad Umer Beg v. Sultan Mahmood Khan PLD 1970 SC 139." We, therefore, find no force in the submission that the refusal to adjourn the matter was without jurisdiction or unlawful.

7. As regards the submission that the learned Member Board of Revenue ought to have dismissed the revision application in default and not on merits, the learned counsel has placed his reliance on a number of cases reported as (1) Messrs S.M.Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd., Karachi and another PLD 1976 Kar.268, (2) Habibullah v. Ali Muhammad 1986 CLC 1227, (3) M.Saeed Ahmed Dar and 14 others v. Shahabuddin and 16 others PLD 1982 Lah.362 and (4) AIR 1949 All. 248.

8. The first case decided by Mr. Justice Zafar Hussain Mirza (as he then was) was a Civil Misc. Appeal. The Honourable Judge while noticing a number of decisions wherein difference of opinion was expressed as to whether the appellate Court would be competent to consider the merits of the appeal and decide it, despite the absence of the appellant in his favour, came to the conclusion that Order 41 rule 17 C.P.C. which is a specific provision dealing with the procedure in the case of non‑appearance of the appellant, empowers the Court to dismiss the appeal in default only. The plain language of the rule does not make provision for a judgment on merits, the only power vested in a civil appellate Court under Order 41 rule 17 C.P.C. is only a power to dismiss the appeal. The case is distinguishable as there seems to be no provision in the Land Revenue Act parallel to the procedure laid down under Order 41 rule 17 C.P.C. for hearing the appeals/revisions before the learned Member, Board of Revenue.

9. The second case 1986 CLC. 1227 (DB) was a regular second civil appeal wherein the provisions of Order 41 rules 17 and 19 C.P.C. again came under consideration and it was observed that:‑ "Under the rule the appellate Court has a discretion to dismiss the appeal in default or to adjourn it to some other future date but it is not authorised to dismiss the same on merits in the absence of the appellant where instead of dismissing the appeal for default the appellate Court dismisses it on merits, the order dismissing the appeal on merits in the absence of the appellant would be treated as an order of dismissal for default."

10. The third case PLD 1982 Lah.362 was a civil revision. A learned Single Judge of the Lahore High Court while considering the provisions of Order 41 rule 17 C.P.C. agreed with the view as expressed in the first case cited above.

11. The fourth case AIR 1949 Allahabad 248 was a first civil appeal wherein Order 41 rules 17 and 30 came under discussion and it was held that in view of rule 17 of Order 41 the appeal dismissed on merits will be taken as an appeal dismissed for default.

12. All the cases cited before us are under the civil jurisdiction of the Courts. No case was cited at the Bar under the Constitutional or Revenue jurisdiction. In view of the observations made by us in para. 6 above, even if the order passed by the learned Member, Board of Revenue impugned before us is taken to be an order of dismissal in default, we do not feel inclined to exercise our constitutional jurisdiction which is equitable in nature. The matter was pending since 1980 before the learned Member, Board of Revenue. It was the petitioner who had invoked the revisional jurisdiction and it was he who had been taking adjournments mostly on the ground that his counsel was busy before the High Court. It was open to him to engage another counsel as the adjournments were sought repeatedly on that ground. Moreover, it was the duty of the counsel that if he was busy invariably in the High Court, either he should have returned the brief to the petitioner or should have briefed properly his junior partner so that the proceedings before the Revenue Authority should not linger on at the cost of other side. In any case it has not been shown that the learned counsel for the petitioner attended the Court of the learned Senior Member Board of Revenue in the due discharge of his professional duties but found that the case has already been decided against him. On the other hand, learned respondent's counsel stated at the Bar that the matter was called at about 10.00 a.m. but due to absence of the counsel for the petitioner, it was kept aside and after considerable time the matter was disposed of by the learned Member at about 1.00 o'clock. The learned counsel for petitioner did not file any Review before the learned Member. It is also noticeable that the above petition was presented in this Court on 15‑8‑1987 after more than five months of the dismissal of the revision application.

13. The learned counsel for petitioner submits that the matter dismissed was not a revision but an appeal as it is so Stated in the impugned order. But, was find that the petitioner has himself shown it as revision application and not the appeal and the nomenclature used therein is that of petitioner and not the appellant. In the case diary also he has been described as petitioner, and nowhere as the appellant. Furthermore, the petition is shown to have been filed not only under section 161 but also under section 164, of the Sind Land Revenue Act which is meant for revision application. Probably, the counsel was not certain whether the remedy was by way of appeal or revision and that is why the matter was filed by him under both sections 161 and 164 provided for appeal and revision respectively. However, it makes little difference insofar as it concerns the exercise of Constitutional jurisdiction in the circumstances.

14. The learned counsel for petitioner next submits that the impugned order is not a speaking order. Reliance has been placed by the learned counsel on the cases of Muhammad Hussain Khan v. Said Muhammad Khan and 11 others PLD 1988 SC (AJ&K) 184 (DB) and Muhammad Sultan and 2 others v. Member (Revenue), Board of Revenue and 4 others 1985 CLC 1479. The first case is a regular civil appeal and other one is an order passed by a learned Single Judge of Lahore High Court in a pre‑emption matter under Land Reforms Regulation (MLR 115) wherein it was observed that the suit was not adjudicated in accordance with law as the Courts below have failed to examine the contentions of the parties raised before it in the light of material available. Needless to observe that pre‑emption matter under the Land Reforms Regulation is to proceed as a suit and the learned Deputy Commissioner is to act as a civil Court provided in the Regulation itself which is not the case here.

15. Anyhow we have taken the order on the showing of the petitioner's counsel himself to be an order of dismissal in default and, therefore, this contention that the order is not a speaking order is not available to the learned counsel for petitioner. In any case we find that the impugned judgment takes into consideration the facts on record including the joint unanimous report of the two Inspectors and other materials on record i.e. maps etc. and then conclusion has been arrived that the matter calls for no interference by him.

16. For the aforesaid reasons, we find no force in the petition and the same is dismissed but, in the circumstances there will be no orders as to costs. Record and proceedings received from the office of the learned Member, Board of Revenue be returned. AA./861/M.K. Petition dismissed