1985 PLP 833 (SCMR)

Having failed to obtain relief from the High Court, the appellant filed a review petition before a tribunal known as the Majlis‑e‑Shura, Kalat, which had replaced the erstwhile Wazir‑e‑Muarif. The Majlis rejected this application on 23‑7‑1959 on the grounds that the Wazir‑e‑Muarif on 3‑5‑1953 had already dismissed an earlier application for review, and that they did not have any jurisdiction to review an order passed by any other officer. The result was that the order of the Wazir‑e‑Muarif dated 1‑4‑1953 remained intact. Thereupon, the appellant filed Second Appeal No.12 of 1960 in the High Court of West Pakistan, Quetta Circuit, which was, however, dismissed on 31‑5‑1962 by a Division Bench comprising Wahiduddin Ahmad and A.S.Farooqi, JJ. The learned Judges upheld the view taken by the Majlis‑e‑Shura on both the points. The appellant then invoked the writ jurisdiction of the High Court by filing Writ Petition No.21 of 1962, contending that the order of Wazir‑e‑Muarif, dated the lst of April, 1953 was passed without jurisdiction. A Division Bench of the High Court comprising Inamullah and J.H.Rizvi, JJ also summarily dismissed this petition by their order, dated the 27th of August, 1962. The learned Judges observed that the order made by Wazir‑e‑Muarif on 1st of April, 1953 against the appellant Atta Muhammad was appealable, and therefore, the remedy provided under Article 98(2) of the 1962 Constitution was not available to him. On the question of the filing of the appeal before the Wazir‑e‑Azam, they rejected the appellant's contention on the ground that no such fact was mentioned on the previous two occasions when the matter had been brought before the High Court in 1958 as well as in 1962. They observed that they could not permit this point to be urged at that stage. Finally, they stated that if the petition was to be treated as being directed against the order made on 1‑4‑1953, then it was highly belated. Aggrieved by this order of the High Court the appellant Atta Muhammad filed C.P.S.L.A. No.289 of 1962, but a Division Bench of this Court dismissed the same on the 6th of February, 1963. The learned Judges observed that "the legal position, therefore, is that the petitioner's appeal against the order of the Wazir‑e‑Muarif remains un-disposed of till today. The petitioner's remedy is obviously to approach the authority that is competent to hear that appeal for its disposal instead of coming to this Court for special leave to appeal from the order of the High Court." In the light of the observations made by this Court the appellant once again approached the High Court of Nest Pakistan, Quetta Circuit, by means of a Civil Miscellaneous Application No.110 of 1963. A Division Bench of the High Court dismissed this application in limine by its order, dated the 29th of July, 1965. After tracing the history of the litigation between the parties at some length, the learnea Judges came to the conclusion that appellant Atta Muhammad had not filed any appeal against the judgment of the Wazir‑e‑Muarif dated 1‑4‑1953, and the only appeal filed by him was against the judgment and decree of the Civil Judge, Baluchistan States Union, dated the 12th of August, 1954, which appeal was numbered as C.A.35 of 1956 and disposed of by the High Court by its order, dated the 8th of September, 1958. They further observed that the observations made by this Court, while dismissing Atta Muhammad's petition for special leave to appeal bearing No.289 of 1962, regarding the pendency of such an appeal, were not binding on them, as "it is difficult to concede the proposition that their Lordships gave any decision on a question of law in any undefended proceeding in which the respondents had no notice to appear." The appellant once again came to this Court by way of C.P.S.L.A.No.116 of 1966, which was dismissed by a Division Bench of this Court on the 27th of May, 1966, observing that it appeared that the facts were misrepresented before this Court on the basis of which certain observations were made while disposing of C.P.S.L.A.No.289 of 1962. It was concluded that "the learned Judges of the High Court have, therefore, rightly held that no appeal was pending in that Court from the order of the Wazir‑e‑Muarif.'' The appellant then preferred Civil Review Petition No.30 of 1966, on which an interim order was made by this Court on the 10th of October, 1966 stating that "what is necessary, it seems, is to ensure the petitioner's right to one appeal from the decision of an original Court which has gone against him. There is need for determination of the question which Court is competent to hear an appeal from the decision of the Wazir‑e‑Muarif, dated the 1st of April, 1953". It was directed that in the first instance, the record of the appeal before the Civil Judge, Baluchistan States Union be sent for. The matter again came up before the Court on 30‑i1‑1966, when the appellant's prayer for review of the order of this Court, dated the 27th of May, 1966 was granted. It was also directed that a competent counsel shall be appointed as amicus curiae if the appellant cannot afford one. The original petition for leave to appeal filed by the appellant, namely, 116 of 1966, came up for fresh hearing before the Court on the 4th of April, 1967, and leave to appeal was granted to examine the question whether the appellant's appeal against the order of the Wazir‑e Muarif of the now merged State of Kalat remains undisposed of till today. From the foregoing somewhat lengthy narration of facts relating to the various stages of litigation between the parties, spreading over the last fifty years, it would be seen that the only question requiring determination by us is whether the appellant had indeed filed an appeal against the order, dated the 1st of April, 1953 passed by the Wazir‑e Muarif of the former Kalat State, by which his suit was dismissed. Our examination of the original record shows that on page 455 of the file relaxing to the appellant's suit there is an appeal addressed to the Khan‑e‑Muazzam Tajdar‑e‑Baluchistan, i.e. the Ruler of Baluchistan. This appeal is dated the 3rd of May, 1953 and is directed against the order of the Wazir‑e‑Muarif, dated the 1st of April, 1953. The Ruler properly entertained this appeal and he passed an order on 6‑5‑1953 directing the Wazir‑e‑Azam to consider the arguments and objections of the appellant and to do justice in the matter. This order appears at the bottom of the second page of the memorandum of appeal. The appellant Atta Muhammad followed up this appeal by submitting a number of petitions to various authorities including the Wazir‑e‑Muarif himself. One such application is dated 28‑7‑1953 on page 456 of the file, on the reverse of which there is a note by Maulvi Shamsul Haq, Wazir‑e‑Muarif, dated the 30th of July, 1953 stating that the petitioner had already filed an appeal against his judgment before the Wazir‑e‑Azam, and that this application may also be forwarded to the Wazir‑e‑Azam. There is still another application addressed by the appellant to "Agha Sahib", meaning Agha Abdul Hamid who was then Prime Minister of Kalat State drawing attention to the disposal of his pending appeal. This is followed by further applications dated the 29th of September, 1953, 26th of January, 1954 and 15th of February, 1954, all addressed to the Wazir‑e‑Azam, Kalat State, for the expeditious disposal of his appeal, as the matter had been pending for the last thirty years. There is no indication on the file regarding the disposal of this appeal, but on page 462 of the file, there is an order dated the 25th of April, 1954 directing the parties to appear before the Civil Judge of the Baluchistan States Union on the 15th of June, 1954. On the succeeding pages there are some interim orders made by the learned Civil Judge, and on pages 466 and 467 appears his decision, dated the 12th of August, 1954, to which reference has already been made. The file then contains some interim orders and notices etc. issued in connection with the appeal filed by Atta Muhammad against the decision of the learned Civil Judge, dated the 12th of August, 1954. It thus appears that the appeal filed by Atta Muhammad on 3‑5‑1953 before the Ruler of Kalat, and forwarded to Wazir‑e‑Azam, Kalat, for disposal was never decided by the Wazir‑e‑Azam, and instead the only decision given in the matter was by the Civil Judge of the Baluchistan States Union, apparently in another appeal filed by Atta Muhammad before this Officer, which order was rightly set aside by the High Court of West Pakistan on 8‑9‑1958 in Civil Appeal No.35/1956, That the appeal dated the 3rd of May, 1953 has remained pending is also clear from a report made by the Law Secretary of the Baluchistan States Union on the 28th of April, 1955, a copy of which has been placed on the record of this Court on pages 9 to 15 of Part III of the Paper Book. This Officer expressed the opinion that the decree passed by the Civil Judge, Baluchistan States Union, had no legal validity and could only be treated as a mere report to the Wazir‑e‑Azam and not a decree. On a consideration of these documents and orders we have come to the conclusion that the appellant Atta Muhammad had indeed filed an appeal in the Court of the Wazir‑e‑Azam on 3‑5‑1953 against the dismissal of his suit by the Wazir‑e‑Muarif on 1‑4‑1953 and this appeal had not been disposed of by the Wazir‑e‑Azam by the time the State of Kalat was merged with the other Provinces and States of West Pakistan. As already stated, under section 7 (5) of the Establishment of West Pakistan Act, 1955, this appeal was to be deemed to be pending in the High Court of West Pakistan, with effect from 14‑10‑1955. The High Court has still not disposed of the same. The fact that the appellant also filed an appeal in the Court of the Civil Judge of the Baluchistan States Union can have no effect on the pendency of the earlier appeal filed by him before the Wazir‑e‑Azam. On the contrary, as the order made by the learned Civil Judge on 12‑8‑1954 has been found to be without jurisdiction by the High Court of West Pakistan, even this appeal could have been treated as a pending appeal to be disposed of by the authority having jurisdiction in the matter, namely, the Wazir‑e‑Azam of the Kalat State before the formation of, One‑Unit and the High Court of West Pakistan thereafter. However, it is not necessary to pursue this matter any further, for the reason that there is an earlier competent appeal filed by the appellant on 3‑5‑1953 in the Court of the Wazir‑e‑Azam of the Kalat State which has remained pending for all these years. It is indeed unfortunate that the appellant had to run from pillar to post for the last twenty‑two years to get a hearing on merits against the dismisal of his suit by the Wazir‑e‑Muarif by his order, dated 1‑4‑1953. It is obviously necessary to ensure that the appellant has at least one right of appeal against the order of the original Court. As a result, we would accept this appeal, set aside the order made by the High Court of West Pakistan in Civil Miscellaneous Application No.110 of 1963 on 29‑7‑1965 and direct that the appeal filed by the appellant on 3‑5‑1953 be now disposed of expeditiously on merits by the High Court of Sind and Baluchistan. As no one has appeared to contest this appeal on behalf of the respondents, there will be no order as to costs. M . Z . M . Appeal accepted.