2008 PLP 1670 (CLC)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that the property in dispute was owned by one Muhammad Ghaus who through registered sale-deed dated 29-1-1981 sold it in favour of the present petitioners and respondents Nos.2 to

5. This sale was sought to be pre-empted by respondent No.1 by filing a suit on 22-6-1981 on the basis of being tenant over the suit property. The learned trial Court vide judgment and decree dated 18-9-1984 decreed the suit. The petitioners and respondents Nos.2 to 5 filed an application for setting aside the decree. This application was dismissed by the trial Court vide order dated 4-5-1986. This order was assailed by the petitioners through an appeal before the Additional Commissioner (Revenue) who vide order dated 31-8-1986 consigned the appeal on the ground that in view of the judgment delivered by the Honourable Supreme Court, right of pre-emption in favour of a tenant has ceased to exist. In the meanwhile, petitioners moved applications to the Revenue Authorities for entry of their name as owners which was originally dismissed by the Revenue Officer, however, on appeal the same was remanded but thereafter, it appears that the file of the Mutation No.1401 for the revival of petitioner's name in the Revenue Record could not be traced.

2. On the other hand another litigation between the parties with regard to the entry of respondent No.1 as tenant was also going on which was ultimately dismissed vide order dated 22-1-1985 by the Board of Revenue and it was held that respondent No.1 is not a tenant. This order was sought to be reviewed by respondent No.1 which review was also dismissed on 29-8-1994. Respondent No.1 filed Writ Petition No.17016 of 1996 which was disposed of vide order dated 8-12-1996 on the submissions made by the learned counsel for the petitioners.

3. Petitioners on 28-1-1995 filed revision before the Board of Revenue against order dated 31-8-1986 passed by the Additional Commissioner (Revenue). This revision stands dismissed vide order dated 11-9-1999. This order is being assailed through the instant constitutional petition.

4. Learned counsel for the petitioners contends that the order of Additional Commissioner (Revenue) dated 31-8-1986 was totally an ambiguous order which was also observed by the Board to be against law, despite that, his revision was dismissed apart from other on the ground of being barred by time. It is submitted at the bar that he had filed an application under section 5 of the Limitation Act for the condonation of delay in filing the revision before the Board. Although such application was not placed on record of this petition, however, he has shown me from his own record such an application. It is submitted that no order or observation was made by the Board with regard to the said application. It is further submitted that no limitation runs against a void order. Since order dated 31-8-1986 by the Additional Commissioner (Revenue) was not only void but was also ambiguous and confusing leaving the parties in uncertainty, therefore, delay if any could not be said to be fatal. It is also added that on account of this ambiguity parties continued to be litigating against each other on different issues connected with the same matter.

5. On the other hand, learned counsel for respondent No.1 contends with reference to Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062, even a void order is necessarily required to be challenged within reasonable time. A period of nearly about 10 years, by no means, can be said to be reasonable. With reference to Muhammad Azhar Khan and another v. Assistant Commissioner/Collector, Toba Tek Singh and others 2006 SCMR 778, it is contended that if in the lower forum an appeal is not filed within limitation then writ petition in such cases is not competent. With reference to Messrs Nida-e-Millat, Lahore v. Commissioner of Income Tax Zone-I, Lahore 2008 SCMR 284, it is contended that there has to be some explanation with regard to delay in filing of a matter but in the Memorandum of revision before the Board of Revenue, no explanation was offered. It is also added that respondents Nos.2 to 5 who were also co-vendees of the petitioners had already withdrawn their share of decretal amount.

6. Respondents Nos.2, to 5 have already been proceeded against ex parte. The other official respondents have no practical interest in the case.

7. I have considered the arguments of the learned counsel for the parties.

8. The appeal filed by the petitioners was consigned by the Additional Commissioner (Revenue) on 3'1-8-1986 probably keeping in view the law laid down by the Honourable Supreme Court reported as Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC

360. He should have given a positive finding on either side i.e. he should have allowed the appeal in view of the fact that according to him respondent No.1 has lost the right of pre-emption or he should have dismissed the appeal for any reason to be advanced by him but without giving any finding with regard to the fate of appeal it was merely consigned to record. In these circumstances, petitioners were thinking on the line that since right of pre-emption of respondent No.1 has been declared to be not available by the Additional Commissioner (Revenue), therefore, they are the owners of the property. On the other hand, respondent No.1 entertained a view that 'since his decree has not been set aside by the said order, he becomes owner on account of the decree passed by the learned trial Court. On account of this confusion, parties also continued litigating with regard to entry in the Revenue record in their favour. They also were litigating the fact as to tenancy of respondent No.1. In these circumstances, although there is a sufficiently long delay in filing the revision by the petitioners before the Board of Revenue but such delay on account of such confusing and ambiguous order could have been condoned if the learned Member Board of Revenue had attended the application of the petitioners for condonation of delay. The order does not indicate that any attention was given by the learned Member to petitioners' application for condonation of delay. It is also to be noted that the learned Member has also observed in para.5 of his judgment that the order dated 31-8-1986 was totally against the law. In these circumstances, order which is against the law should not have been allowed to remain intact on technical grounds.

9. The question of limitation although is a technical point but it also creates rights in favour of the other side as well, therefore, it should not be lightly ignored. The peculiar facts and circumstances which clearly indicates that both the parties were not sure in view of the order of Additional Commissioner (Revenue), therefore, such delay in such circumstances cannot be said to be fatal. Resultantly this writ petition is allowed, order passed by the learned Member Board of Revenue dated 11-9-1999 and Additional Commissioner (Revenue) dated 3178-1986 are declared to be illegal and without lawful authority. As a result thereof appeal filed by the petitioners before the Additional Commissioner (Revenue) which was consigned to record on 31-8-1986 shall be deemed to be pending before the competent forum. On account of lapse of sufficient time, it is expected that the authority hearing appeal shall give special attention to this case for its early adjudication.

10. Before parting with the order, I would like to observe that respondent No.1, if so advised, would be free to move an application before this Court for the revival of his Writ Petition No.17016/1996 which may be considered by this Court on its own merits. M.H./M-314/L Case remanded.