2005 PLP 1707 (YLR)

"The counsel for the petitioner has informed that the petitioner had been out of touch with him. There has been no contact between them. Accordingly he has not been able to comply with Court orders and deposit registered A.D. notice for the service of the respondents. Counsel also states that the petitioner might have lost interest in the proceedings of the case. The revision petition is dismissed in default for non-compliance of the order of the Court. Mere reading of the aforesaid operative part of the impugned order of the Member, Board of Revenue shows that the Member. Board of Revenue has dismissed the revision petition for non-compliance of the orders wherein the petitioner's father failed to deposit process fee without mentioning any reason in support of the impugned order, dated 13-9-1992. It is settled principle of law that principles of C.P.C. are applicable qua proceedings pending before the Member Board of Revenue by virtue of section 141 C.P.C. In arriving to this conclusion, I am fortified the law laid down in Anwaar Ali v. Mst. Riaz Anwar and another (1997 MLD 1788). It is also settled principle of law that the equitable and just principles in the Civil Procedure Code may be followed even in the special Tribunals constituted under Special Law in view of law laid down in the Haji Khudai Nazar and another v. Haji Abdul Bari (1997 SCMR 1986) whereas the Revenue Courts are Courts of civil jurisdiction. It is also settled principle of law that the object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions should not be allowed to defeat the ends of justice as per law laid down in Shahzaman and another v. Muhammad Aslam and 3 others (PLD 1985 Peshawar 35). The impugned order passed A by the Member Board of Revenue is not in consonance the law laid down by the Honourable Supreme Court in Shamroze Khan v. Muhammad Amin (PLD 1978 SC 89). The 'aforesaid proposition of law is also supported by the law laid down by the Division Bench of this Court in Muslim Commercial Bank Limited v. Messrs Khabeer Trading. Corporation and 3 others (2003 CLD 531). Even otherwise after addition of section 24-A in the General Clauses Act it is the duty and obligation of the public functionaries to decide the controversy between the parties after application of mind. Section 24-A of the General Clauses Act is procedural in nature; therefore, it has retrospective effect as per law laid down by the Honourable Supreme Court in Zain Yar Khan v. The Chief Engineer (1998 SCMR 2419). Section 24-A of the General Clauses Act is interpreted by the Honourable Supreme Court in another case and law laid down a principle that public functionaries have to decide the controversy between the parties with cogent reasons as per law laid down by the Honourable Supreme Court in Messrs Airport Support Services v. The Airport Manager (1998 SCMR 2268)

7. In view of what has been discussed above, the Constitutional petition is accepted and the impugned order of the Member Board of Revenue is set aside. Meaning thereby the revision petition filed by the predecessor-in-interest of the petitioners shall be deemed to be pending adjudication before the Member Board of Revenue. Parties are directed to appear before the Member Board of Revenue on 24-5-2005, who is 'directed to decide the revision petition of the petitioner strictly in accordance with law on merits in accordance with law without being influenced by the observation of this Court. Preferably within six months after receiving the order of this Court even at the cost of day to day proceedings. Parties and their counsel are directed to cooperate with the Member Board of Revenue so that the matter may be finalized within the prescribed period. In case, any of the party or its counsel fails to cooperate with the Member Board of Revenue then the Member Board of Revenue is directed to invoke the penal provisions against the said party. C. M. No. 1734-C of 2004 C.M. No.1735-C of 2004 C.M. No.1736-C of 2004 Mian Subah Sadiq Klasson for Applicants. Muhammad Hanif Khatana, Addl. Advocate-General for Respondents Nos.1 and

2. Rana Muhammad Arif for Respondents Nos.3 to

5. Muhammad Din Ansari for Respondents Nos.6 to

9. C.M. No.1736-C of 2004 is an application to bring on record legal heirs of the petitioners. The same is allowed as prayed for as the application is supported by affidavit. C.M. No. 1734-C of 2004 is an application for restoration of the main writ petition, which was dismissed for non -prosecution vide order dated 14-9-2001 where C.M. No. 1735-C of 2004 is an application for condonation of delay.

2. The learned counsel of the applicants submits that late Mst. Mumtaz Begum has filed the main petition, who died on 9-10-1998. Mutation of inheritance was sanctioned on 10-4-2004. The applicants were not aware of the fate of the main petition. The applicants came to know a week ago that the main writ petition has been dismissed for non-prosecution on 14-9-2001 and the original petitioner has died on 9-10-1998. The petitioner did not know the fate of the foresaid Constitutional petition; therefore, the petitioners/applicants have filed this application well in time and in fact the writ petition was dismissed for non-prosecution when the original petitioner has already been died; therefore, it is duty of the counsel of the original petitioner to intimate this fact to the Court.

3. The learned law officer submits that impugned order is valid as the petitioners did not enter appearance on 14-9-2001. The learned counsel of respondents Nos.3 to 5 submits that he has no objection with regard to acceptance of the aforesaid applications. The learned counsel of respondents Nos.6 to 9 submits that application is highly time-barred and it is the duty of the applicants to explain delay of each delay; therefore, applications are liable to be dismissed.

4. Be that as it may, the applications are supported by the affidavits and the reasons recorded therein; therefore, the same are allowed as prayed for. Consequently the main writ petition is C restored to its original number. With the concurrence of the learned counsel of the parties, the main writ petition is decided vide a separate order. Mian Subah Sadiq Klasson for Applicants. Muhammad Hanif Khatana, Addl. Advocate-General for Respondents Nos.1 and

2. Rana Muhammad Arif for Respondents Nos.3 to

5. Muhammad Din Ansari for Respondents Nos.6 to

9. C.M. No.84 of 2005 is an application for setting aside order dated 23-11-2004 wherein C.M. No.1735-C of 2004 and C.M. No. 1736-C of 2004 were dismissed for non-prosecution, whereas C.M. No.85 of 2005 is for condonation of delay.

2. The learned counsel of the applicants submits that the cause list which has been received by the counsel of the applicants for the week commencing from 22-11-2004 does not mention the title case. The list is attached with the application. The learned counsel of the applicants has also secured general adjournment for the period 8-11-2004 to 4-12-20114; therefore applications could not be dismissed for non -prosecution.

3. The learned law officer submits that the impugned order is valid as the petitioners did not enter appearance. The learned counsel of respondents Nos.3 to 5 submits that he has no objection to restore the aforesaid applications. The learned counsel of respondents Nos.6 to 9 submits that it is the duty and obligation of the counsel of the applicants to explain delay of each day and the matter pertains to the old category; therefore, it is duty and obligation of the applicants' counsel to appear or the applicants have to appear on 23-11-2004; therefore, applicants and applicants' counsel failed to furnish sufficient cause for restoration of the aforesaid applications and condonation of delay.

4. The learned counsel of the applicants in rebuttal submits that name of the applicants' counsel is Mian Subah Sadiq Klasson whereas the cause list was with regard to this case was sent by the office to Mian Subah Sadiq Wattoo, Advocate.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. It is not controverted by the counsel of respondents Nos.6 to 9 that the cause list supplied to the counsel of the applicants mentions the name of the case in question and also did not controvert this fact that counsel of the applicants has secured general adjournment. In view of the aforesaid circumstances, it is sufficient ground to set aside the order dated 23-11-2004 in view of the contents of the application wherein sufficient reasons are mentioned which are supported by documents and affidavit; therefore, aforesaid applications are allowed as prayed for. Consequently, C.M. No. 1735-C of 2004 and C.M. No. 1736-C of 2004 are restored to their original number. With the concurrence of the learned counsel of the parties the aforesaid applications are decided vide a separate order. M.B.A./M-1029/L Order accordingly.