PLD 1989 Peshawar 98 (PLP)

WALI MUHAMMAD KHAN, J.‑‑Through the instant writ petition, Haji Nawab petitioner, claiming to be the successor‑in‑interest of Saiful Malook deceased defendant, has challenged the order of the Additional Home Secretary (respondent No.2) dated 3‑8‑1985 whereby he accepted the revision petition filed by Fazal‑e‑Wahid plaintiff/ respondent No.1 and, by setting aside the order of the Appellate Court (respondent No.3) dated 8‑11‑1982, ordered inspection of the spot and handing over the possession of the suit property to the plaintiff /respondent No.1

2. The brief facts relevant for the purpose of the instant petition are, that Fazal‑e‑Wahid plaintiff /respondent No.1, instituted a suit for declaration against Saiful Malook deceased defendant, to the effect that he is owner of the suit property as explained in the heading of the plaint; that the deceased defendant had illegally amalgamated the same with his own share, and that in spite of repeated requests, is not inclined to surrender possession to the plaintiff/ respondent No.1. The deceased defendant, then alive, did not, put in appearance, in compliance to the summons issued to him and was, therefore, proceeded against ex parte, vide orders of the learned lower Court (respondent No.4) dated 8‑3‑1979 and 12‑7‑1979. The Jirga was constituted by the respondent No.4 under PATA Regulation‑II of 1975 and direction issued to them, to conduct the necessary enquiry in the matter and submit their report. The Jirga submitted their award dated 21‑8‑1979. wherein they recommended the passing of the decree for possessor in favour of the plaintiff /respondent No.1. The deceased defendant had, according to them, forcibly taken possession from the plaintiff; respondent No.1. The learned lower Court (respondent No.4) by accepting the unanimous award of the Jirga, passed the decree prayed for, in favour of the plaintiff /respondent No.1 against the deceased defendant Saiful Malook, vide his order dated 17‑10‑1979. Haji Nawah petitioner, son of the deceased defendant Saiful Malook, vide his application dated 1‑4‑1981, requested for setting aside of the ex parte decree, passed against his father Saiful Malook and for the de novo trial of the case in his presence, as by that time Saiful Malook had already died. The ground agitated in the application was, that the applicant was abroad, and got the knowledge of the ex parte decree on 24‑3‑1981, from the execution proceedings being carried out by the decree‑holder. He also submitted an applicator for the staying of the execution proceedings pending disposal of the application, for setting aside the ex parte decree. It was accepted on 6‑4‑1981 by the lower Court (respondent No.4) and the execution proceedings were stayed till the disposal of the main application for setting aside the ex parte decree. This order was challenged by Fazal‑e‑Wahid, Decree‑Holder through an appeal before the Additional Commissioner‑II Malakand, who accepted the same and vacated the said order dated 6‑4‑1981. However, on review application submitted to the same Court by Haji Nawab petitioner, the learned Additional Commissioner‑II (Respondent No.3) vide his order dated 8‑11‑1982 reviewed the previous order and stayed the execution proceedings as originally ordered by respondent No.4. Not content with the same Fazal‑e‑Wahid plaintiff/respondent No. l moved the Additional Home Secretary through a revision petition who made the following order:‑ "I have gone through the record and heard the learned counsel for the parties. Apart from this I also summoned the parties to ascertain the factual position. The respondent /defendant himself admits that out of 24 tore landed property the petitioner Fazli Wahid has his share of 8 tore in Ghaligay and to the same extent he shares the property in Amlook Darra. The respondent Haji Nawab has no reply to the question as why he had forcibly possessed the share of the petitioner Fazli Wahid at Amlook Darra. The petitioner has produced the original documents in proof of his ancestral property in Ghaligay as well as in Amlook Darra. In view of the above, I feel inclined to accept the revision petition and set aside the orders of the appellate Court dated 8‑11‑1982. With the acceptance of the revision petition, the trial Court is directed to inspect the spot and hand over the possession of the above‑mentioned property to the petitioner Fazli Wahid."

3. We have heard the learned counsel for the parties and have perused the record of the case with their assistance.

4. The perusal of section 12 of the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No.II of 1975 would show that the Additional Home Secretary (respondent No.2) had a very limited jurisdiction of satisfying himself as to the correctness, legality or propriety of any decision, decree or order, given, passed or made under the said Regulation, or as to the; irregularity of any proceedings in the conduct of the case and had no jurisdiction to make any enquiry into the merits of the case, much less, oral interrogation of the parties and deducing his own conclusions therefrom.

5. The above‑quoted paragraph of the impugned order shows that, the learned Additional Home Secretary (respondent Nos.2) has not' referred to any illegality or material irregularity committed by the lower forums but has based his decision on his own enquiry, conducted I by him during the course of the hearing of the revision petition, through questions and answers, made from the parties before him which was not his function, as a revisional Court. In this connection reference to the case Syed Abdullah Shah and 3 others v. Abdul Ghaffar Khan and 2 others reported as P L D 1985 Quetta 152 can be referred to with advantage wherein it had been held that oral discussion or statement, without opportunity to cross‑examine, is not visualised by law. The learned respondent No.2 has exceeded his jurisdiction by adopting the aforesaid method. He was only to see whether the impugned order of the Additional Commissioner (respondent No.3) pertaining to the stay of execution of the ex parte decree, still sub judice before the original, Court (respondent No.4) in connection with the proceedings for setting aside ex part decree, was maintainable or not, and he could not legally express his opinion, one way or the other, on the merits of the case. Both the lower Courts viz. respondents No.3 and 4 had properly exercised their discretion in ordering the stay of the execution proceedings which did not call for interference by the respondent No.2 in the exercise of his revisional powers, and the same is liable to be set aside on this score.

6. There is yet another aspect of the case as well. Under section 12 ibid, the respondent No.2, could entertain the revision petition only if it had been filed within 90 days of the order passed by the Commissioner on appeal and the instant revision petition having been filed after 102 days, was hopelessly barred by time. There was neither L any application filed by the petitioner therein, for the condonation of the delay nor respondent No.2 has condoned the delay in clear words, in the impugned order. The learned counsel for the petitioner cited the case of Ahsan Ali and others v. District Judge and others, reported as P L D 1969 S C 167, the relevant portion whereof is reproduced below:‑‑ "Section 29(2) of the Limitation Act, 1908 itself provides that 'where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that Schedule'. The Displaced Persons (Compensation and Rehabilitation) Act, 1958, is undoubtedly a special law. It is clear, therefore, that whether the plea of limitation was raised or not, it was the duty of the Settlement Court to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or a local law. Mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious' of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceedings on merits."

7. The above dictum of the august Supreme Court is directly applicable to the point in issue and respectfully following the same, it is held that the revision petition before the Additional Home Secretary (respondent No.2) was clearly out of time and should have been dismissed as such. The respondent No.2 by failing to apply his mind to the question of limitation has manifestly acted illegally and with material irregularity.

8. The upshot of the above discussion is that the writ petition in hand is accepted, the order of the Additional Home Secretary (respondent No.2) dated 3‑8‑1985 is set aside and those of the Additional Commissioner (respondent No.3) dated 8‑11‑1982 and of EAC (respondent No.4) dated 6‑4‑1981 are restored with the result that the execution proceedings shall remain stayed till the disposal of the application of the petitioner Haji Nawab for setting aside the ex parte decree dated 17‑10‑1979. This being a very old case, the learned lower Court is directed to dispose of the same expeditiously. H.B.T./690/P Petition accepted.