P L D 1971 Lahore 1056 (PLP)

4. Section 23 of the Land Settlement Act, 1958, which is relevant for the determination of the issue involved, is reproduced below for ready reference :‑ (1) Every Officer appointed under this Act shall for the purpose of making any enquiry or hearing any appeal under this Act have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (Act of 1908), when trying a suit in respect of the following matters, namely:

(a) Summoning and enforcing the attendance of any person and examining him on oath, (b) requiring the discovery and production of any document, (c) requisitioning any public record from any Court or Office, (d) issuing commissions for the examination of witnesses, (e) appointing guardians or next friends of person who are minors or of unsound mind, (f) adding legal representatives of deceased applicants or claimants, (g) restoration of cases dismissed for default, (h) substituting the names of the rightful claimants, (i) consolidation of cases, (j) any other matter which may be prescribed. (2) Every officer appointed under this Act shall be deemed to be a civil Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act of 1898) and any proceeding before any such Officer, shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860) and for the purpose of sections 196, 199 and 200 thereof:‑--" It is clear from the perusal of this section that it is not applicable to the High Court, because the Judges of the High Court are not the Officers appointed under the Land Settlement Act, 1958, nor do they make any enquiry or hear any appeal under the said Act. The High Court is empowered only to hear settle ment revisions under section 21 of the Act and the words, "revision petition" are not mentioned in section

23. On this plain reading of section 23, we are of the opinion that this section does not apply to the High Court.

5. Mr. M. S. Baqir, on behalf of the respondent, argued that since under clause (1) of section 23 of the Land Settlement Act, the powers of civil Court exercisable under the Code of Civil Procedure had been conferred, it will include the penal clauses of Order XXII as well. Although we are clearly of the view that section 23 is not applicable to the High Court while dispos ing o$' settlement revisions under section 21, yet if it be conceded for the sake of arguments that this section is applicable, even then the penal provisions of Order XXII, C. P. C. will not be attracted. Rule 4 of Order XXII of the C. P. C. which is relevant for this case, is reproduced below :‑ "(1) Where one of two or more defendant dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defen dant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal represen tatives of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant." The other provisions of the Code of Civil Procedure relevant on the subject are sections 2(11), 50, 52, 53 and

141. We have to see whether the penal provisions of Order XXII, rule 4, C. P. C. are attracted to the Land Settlement Act, 1958. Chapter VII, which includes section 23, is procedural. The relevant clauses are (f) and (h). The fact that matters have been enumerated in this 3dctton shows that the power of an Officer under this section is restricted only to the matters mentioned there under. It is an admitted fact that there is no mention, whatsoever, about abate ment under this section. Now the question is whether something which is omitted from this section can be read into it or not. The construction of this section makes the intention of the Legislature quite clear, that the power of the Officer is limited only to the matters enumerated therein. If these matters had not been enumerated, perhaps one could argue that all the powers of a civil Court under the Code of Civil Procedure will be available to an officer and that might include the penal provisions of rule 4 of Order XXII, C. P. C., but the section, as it stands, has curtailed the powers of such Officer only to the matters men tioned therein. If the argument of the learned counsel for the respondent be accepted then "it will make all these clauses (a) to (j) redundant. The only logical and reasonable interpretation in this behalf appears to be that the Officer can exercise only those powers which are specified in clauses (a) to (j) of this section. The express mention of one thing implies the L exclusion of another. Thus the mention of clause (f) for adding legal representatives of deceased applicants or claimants, implies the exclusion of abatement. Although the maxim, "expressio unius fat exclusto alterius" has no general or universal applica tion, yet in the instant case it can safely be pressed into service, because this fits in with the intention of the Legislature. If the Legislature wanted to confer all powers exercisable under the Code of Civil Procedure, the wording of this section would have been different and there was no need of enumerating any parti cular matters. Even on general principle of interpretation, a penal provision cannot be attracted unless specifically made applicable. It is admitted by the learned counsel for the respondent that the question of abatement has not been specifically mentioned in section

23. Abatement, admittedly being a penal provision, cannot be impliedly read into it. Since the penal provi sions of rule 4 have not been specifically mentioned in section 23, we can safely infer that the Legislature did not intend to apply thi3 renal provision under this section. Moreover, the question, of abatement runs contrary to another principle viz., law favours that interpretation which goes in favour of adjudication. Strictly speaking the provisions of Order XXII of the C. P. C. are not, 1111 terms, applicable to Settlement Revisions under section 21 of the Act. We accordingly hold that the penal provisions of rule 4,1 Order XXII of C. P. C. are not applicable to section 23 of the Act. The Land Settlement Act, 1958, being a special statute, is to be construed strictly. This Act does not confer any power upon the High Court to invoke any provisions relating to abatement. The inherent jurisdiction of the High Court cannot be invoked for applying penal provisions which have been omitted from sec tion 23 by the Legislature. This view is also supported by the learned Additional Advocate‑General and Mr. Maqbool Elahi Malik, the learned counsel for the Department.

6. Even if it be conceded for the sake of argument that order XXII of the Code of Civil Procedure is applicable to the Land Settlement Act, 1958, even then it is difficult to apply it to the Settlement Revisions. The view taken by this Court in Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator, Corporation of City of Lahore (P L D 1949 Lah. 541) and followed subsequently is that the penal provisions of Order XXII, C. P. C. regarding abat ment are not applicable to revision petitions under section 115, C. P. C. On the same analogy it can be safely inferred that these penal provisions will not be applicable to the Settlement Revisions under section 21 of the Land Settlement Act, 1958.

7. After taking into consideration the relevant provisions of the Land Settlement Act, 1958 arid the Code of Civil Procedure we are clearly of the opinion that the penal provisions of rule 4, order XXII, C. P. C. are not applicable to Settlement Revisions under section 21 of the Land Settlement Act, 1958. As such, there is no question of abatement, although the application to bring the legal representatives of Lala respondent was not made within the prescribed period, we accordingly allow C. M. No. 1594 of 1971 and dismiss C. M. No. 1368 of 1971. The case will now be disposed of on merits. The parties are left to bear their own costs. Order accordingly.