1989 PLP 1294 (CLC)

NAZIR AHMED BHATTI, J.‑‑Amir Abdullah, petitioner herein, had filed a suit against Tota and others, respondents herein, for possession by partition of 1/5 share out of the suit property in the Court of E.A:C. Matta exercising powers of the Deputy Commissioner under the Provincially Administered Tribal Area Civil Procedure (Special Provisions) Regulation, 1975 (hereinafter referred to .as the Regulation). This suit was contested by the respondents who submitted their written statement wherein they took up the preliminary objection that the suit was time‑barred as the property in dispute was their exclusive property and in their possession since the time of their forefathers. Since this preliminary objection about limitation had beep raised and under subsection (2) of section 4 of the Regulation the point of limitation ‑had to be decided by the Deputy Commissioner himself but instead of adopting that procedure the E.A.C, respondent No.4 herein constituted a Jirga and referred the case for its report. However, the learned respondent No.4 disagreed with the report of the Jirga constituted by him and by order dated 30‑11‑1983' he set aside the said report and constituted a new Jirga and again referred the case to the new Jirga. The report of the second Jirga was accepted by the learned respondent No.4 on 29‑10‑1984 and a decree was passed in favour of the petitioner as prayed for by him. The respondents herein riled an appeal in the Court of learned Additional Commissioner, Malakand Division, but the same was dismissed on 15 8‑1985. Still feeling aggrieved the respondents herein filed a revision petition before the learned Additional Secretary Home which was accepted on 25‑1‑1986 and the suit of the petitioner herein was dismissed. The petitioner feeling aggrieved by the judgment of the learned Additional Secretary Home came up with the writ petition in hand challenging the order dated 25‑1‑1986 ‑of the learned Additional Secretary Home as being without lawful authority and of no legal effect.

2. We have heard learned counsel for the parties at length who also took us through the record of the case.

3. Since the question of limitation was involved in the proceedings before, the learned E.A.C. respondent No.4, he should have, decided the question of limitation himself as provided in subsection (2) of section 4 of the Regulation. He could only refer the matter to the Jirga if he had come to the conclusion that the suit was within time but if he had come to the conclusion that the suit was time barred under any Rivaj, custom or usage having the force of law then he could) not refer the suit to the Jirga. Obviously the learned EA.C. proceeded without any lawful authority and reference by him to the Jirga was without jurisdiction. Iris the appeal as well, although the learned Additional Commissioner stated in his order dated 15‑8‑1985 that the point of limitation had been raised, yet he did not. A take that point into consideration and maintained the order of the learned E.A.C. The appellate powers of the Commissioner arc exercised by him under section 11; of the Regulation which empowers the Commissioner to exercise all or any of the) powers conferred on an Appellate Court by the Code of Civil Procedure. As such it was open to the learned Additional Commissioner to take into consideration, the objection about limitation raised by the appellants before him in their written statement and he could, by accepting the appeal set aside the order of the E.A.C. and could have remanded the case to him first to decide the point of limitation before making any reference to the Jirga. However; the learned Additional Commissioner did not take this point into consideration although he has mentioned in his order that the question of limitation was raised in the written statement.

4. On the contrary the impugned order of the learned Additional Secretary Home would show that he had given all considerations in his impugned judgment, to the point of limitation and it appears that this was one of the considerations. which prevailed with him for the acceptance of the revision petition and dismissal of the suit of the petitioner herein. However, two points are apparent from the order of the learned Additional Secretary Home; firstly, that he did not give an opportunity to the petitioner of being heard on the point of limitation; and secondly, when he came to the conclusion that the suit was time‑barred, he should have remanded the case back to the learned E.A.C.to decide the question of limitation as laid down in subsection (2) of section 4 of the Regulation by accepting the revision petition and setting aside the orders of both the learned Additional Commissioner and the learned E.A.C.

5. We, are therefore, of the considered opinion that all the three impugned orders dated 29‑10‑1984 of the learned E.A.C. dated 15‑8‑1985 of the learned Additional Commissioner and dated 25‑1‑1986 of the learned Additional Secretary Home were made without lawful authority and are of no legal effect. We will, therefore, accept this writ petition, set aside all the aforesaid three impugned orders and will remand the case back to the learned E.A.C. to first adjudicate upon the question of limitation and if he came to the conclusion that the suit of the petitioner was not time‑barred only then to proceed further in accordance with the provisions of the Regulation. We, however, make no order as to costs. A.A./721/P Case remanded.