P L D 1957 (W (PLP)

CONSTANTINE, J.

The petitioner was the respondent before the Custodian and the respondent 3 before us was the applicant in revision before the Custodian. The facts are conveniently recited in the order of the Custodian now challenged. "This is an application in revision under section 36 (4) of the Evacuee Property Ordinance 1949, from an order of the Additional Custodian (Judicial) passed in Appeal No. 563 of 1952 on 18th February 1953. The facts leading up to this revision petition must be briefly stated. On 3rd November 1947, two Hindus who became evacuee subsequently sold the disputed Plot No. 11/13 Survey Sheet No. RY 9 to three persons who belong to Bombay in Bharat and who are still living there. These three purchasers were Nomanbhai and his two sons Zenul and Dawood. The plot had certain old construction on some part of it and was 1866 square yards in area and was situated on McLeod Road, Karachi, It was sold for Rs. 30,000 i.e., at approximately Rs. 16 per square yard. On 11th May 1948, Nomanbhai and his son Zenul executed a power of attorney in favour of respondent Qamruddin. Dawood the third purchaser did not execute this power of attorney in favour of Qamruddin ; it is alleged that he died before that. Under this power of attorney Qamruddin was to raise a building on the plot in suit and thereafter was to look after and manage the said building on behalf of the purchasers who declared that they would not be able to attend the building personally and other affairs thereof. On 31st November 1948, the said Nomanbhai and Zenul leased out this plot in favour of their attorney for 10 years at a rent of Rs. 4C0 per month. On 15th March 1949, the attorney Qamruddin leased out 906 square yards only of this plot to the applicant for 10 years at a rent of Rs. 975 per month. The applicant paid Rs. 30,000 to Qamruddin as advanced rent. It is alleged by the applicant that in pursuance of one of the conditions of the said sub lease the applicant had to pay Rs. 30,000 in advance, calculated at the rate of Rs. 250 per month for ten years and the balance of Rs. 725 was to be paid by him every month. The applicant has alleged that he had paid in all Rs. 54,000 to Qamruddin when he came to know that the said plot is being treated by the Custodian as an evacuee property whereafter he stopped the payment of rent. Qamruddin then retaliated by filing ejectment suit in the Chief Court of Sind at Karachi being Suit No. 648 of 1950. In the meanwhile Qamruddin made an application under section 16 of the Evacuee Property Ordinance for confirmation of the sale in favour of his principals Nomanbhai and Zenul. This application was made on 14th October 1949, and was numbered as 1260 of 1949. It is important to note that in the title of the application the names of three applicants, namely, Nomanbhai and his two sons Zanul and Dawood were set out in type. The name of Dawood however was subsequently struck off on 25th February and this bears the initials of the learned advocate Mr. Faruqi then appearing for the attorney Qamruddin. The-application went on from hearing to hearing and the evidence was concluded on 25th February 1950. As the Income-tax certificate had not yet been secured and produced, the matter was thereafter adjourned from time to time. Ultimately on 13th December 1951, as no one attended the Court and the Deputy Custodian concerned dismissed the application for default. The relevant order pf the date runs as follows; "None present. Case dismissed in default. The application will stand rejected". Then after the expiry of 8 months an application was made for the restoration of the original application. This application was filed on 23rd July 1952. This application was granted on 11th August 1952, and the original application was restored. The pertinent portion of the order of this date reads as follows: "Mr. Farooqi counsel for applicant, present. He files application for restoration which is allowed on the strength of affidavit filed by the applicant". Ultimately the learned Deputy Custodian granted the original Application under section 16 and confirmed the sale dated 3rd November 1947. Against this order the present applicant filed an appeal which was heard by the Additional Custodian (Judicial) who dismissed the appeal on 18th February 1953. This appeal was dismissed mainly on the ground that the applicant was not an "aggrieved" party within the meaning of section 36 (1) of the Evacuee Property Ordinance. Inter-alia the learned Additional Custo dian also held that it was difficult for him to say that the consideration of Rs. 30,000 was inadequate as alleged by the applicant. Against this order the applicant has now come in revision". Section 36 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, reads as follows: "

36. Appeal, revision and review (1) Any person aggrieved by a final order under section 16, section 18, section 19 or section 23-A passed by a Deputy or Assistant Custodian may prefer an appeal to the Custodian. (2) The appeal shall be presented in such manner and within such time as may be prescribed. (3) The Custodian to whom an appeal is preferred under subsection (1), may dispose of it himself, or make it over for disposal to an Additional Custodian. (4) The Custodian may, at any time either of his own motion or on application made to him within the prescribed period in this behalf, call for the record of any proceeding for the administration of evacuee property which is pending before or has been disposed of by an officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may pass such order in relation thereto as he thinks fit: Provided that the Custodian shall not under this subsec tion pass an order revising or modifying any order affecting any person without giving such person and the Rehabili tation Authority an opportunity of being heard. (5) The Custodian or Additional Custodian may, with the prescribed period and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order. (6) Subject to the foregoing provisions of this section, any order made by the Custodian, or Additional, Deputy or Assistant Custodian shall be final and shall not be called in question in any Court." The petitioner contends that the Custodian's powers of revision granted by subsection 4 do not extend to an appellate order passed under subsection (3). He argues that orders under sections 16, 18, 19 or 23-A follow inquiries prescribed by the Act, and are thus judicial, or at any rate not administra tive, in nature whereas the Custodian's powers of revision extend to administrative matters, and not to orders under those sections : alternatively he argues that even if orders under sections 16, 18. 19 and 23-A are not judicial as opposed to administrative in nature, yet they are sui generis for the purposes of section 36 in that appeal to the Custodian has been allowed and where appeal is allowed to an authority revision by that authority is impliedly prohibited : furthermore, in dealing with an appeal the Custodian either hears it himself or makes it over to an Additional Custodian, and the appellate order (apart from review) is final and not subject to revision whether the Custodian or the Additional Custodian as his delegate or alter ego passes the appellate order. Now, it is true that inquiries ire required by the' Ordi nance before orders under sections 16, 18, 19 or 23-A are passed. But so also section 23-E requires an inquiry. It is also true that subsection 4 of section 36 uses the expression "any proceeding for the administration of evacuee property" but the long title and preamble of the Ordinance declare that the purpose of the Ordinance is to provide for the administra tion of evacuee property and for certain matters incidental thereto. It appears to us that a large interpretation is to be placed upon the words "proceeding for the administration of evacuee property" and that proceedings under the Ordinance in general can be termed as proceedings for the administration of evacuee property, and this latter expression is not used to distinguish a class of administrative proceedings differing in nature from the class of orders under sections 16, 18, 19 and 23-A. As regards the alternative argument, here again the expression "proceeding for the administration of evacuee property" according to the large interpretation which we consider is required by virtue of the long title and preamble includes an Additional Custodian's appellate order, and subsection (4) expressly subjects the Additional Custodian to the Custodian's power of revision. We cannot read into the section an implied prohibition of revision or finality of the Additional Custodian's appellate order in face of this express provision. We thus hold that the Custodian's jurisdiction in revision extended to the Additional Custodian's appellate order passed l~ under subsection (3) of section

36. The Custodian admitted further evidence before himself regarding adequacy of consideration and held upon the evidence as a fact that the consideration was inadequate. The petitioner contends that in revision the Custodian has no power to hear fresh evidence. The power of revision is a statutory power and must be exercised within the limits prescribed by the statute. His powers are to call for the record for the purpose of satisfying himself as to the legality or propriety of any order passed and to pass such order as he thinks fit. Unlike some statutes which expressly allow an appellate or revising authority to make further inquiry, there is no provision in subsection (4) for the making of further inquiry. It is to be noted that according to rule 11 of the Administration of Evacuee Property Rules, 1950 the procedure laid down by the Civil P. C., is to be followed in an inquiry as for as possible and subject to such modifications, as the Custo dian may direct rules 12 (5) and 17 (7) require notice to the Rehabilitation authorities, the respondent and any other person likely to be interested in or affected by the result of the application, both in inquiry, appeal and revision. The inquiry is thus to be formal oral inter partes and evidence is to be led there. It appears to us to be inconsistent with the Ordinance and the rules that further inquiry should be made in revision. We are supported in this view by Babaji Kondali Mali v. Bala Fakira (A I R 1938 Bom. 159), where Beaumont C. J., dealing with a substantially identical provision in the Mamlatdar's Courts Act 1906 (Bombay Code, Vol. II) held that a Collector in revision is not entitled to submit his own finds of fact : this decision has recently been followed by Gajendragethar, J., in October issue of A I R. We need hot go so far, but we do consider that a fresh inquiry is outside the cope of revision. The Custodian's order does not show that the leading of further evidence was justified by any reason such as those given in O. XLI, rule 27 of the Civil P. C. 'His conclusion of fact is founded upon this evidence wrongly admitted an error apparent on the, face of the record. The "first and foremost ground" of the Custodian was that the Deputy Custodian had no power to restore the original application to his file: Mr. Hafiz Ahsan for the Custodian states that the practice in the, department at Karachi has been to restore applications under section 16 dismissed for default when later an income tax certificate was obtained. It is also noteworthy that the point was never taken not even in the revision application until the matter was heard by the Custodian. The learned Custodian in stating that the Civil P. C., does not apply has overlooked rule 11 quoted above Ebrahim Abookakar and another v. Tek Chand (A I R 1953 S C 298), is obviously distinguishable on this ground : for no provi sion such as rule 11 was mentioned, and the Court merely repelled the .contention that section 141 Civil P. C., applied to the Custodian. On the other hand Mr. Farooqui has quoted Mathew's case (A I R 1955 Trav 24), which is an express deci sion upon a rule materially identical with rule 11 that such a rule imports a jurisdiction to act under O. IX, I rule

13. We, therefore, with respect disagree with the Custodian's decision that the Deputy Custodian had no juris diction to restore. The learned Custodian then stated that an application to restore must be made within 30 days. But the Limitation Act does not apply proprio vigore to proceedings before the Custodian, and the rules apply only sections 4 5' and 12 of that Ac: to the periods of limitation prescribed 'in~ the rules. The Custodian then considered whether delay could be condoned for the purpose of the appellant's alterna tive prayer to the Deputy Custodian that, if restoration was not granted, his application should be entertained as a fresh application for confirmation. He certainly considered that condonation should not be given, and for reasons which apply equally, to restorations as well as to filing of a fresh appli cation for confirmation But the learned Custodian did not deal with the position (admitted by Mr. Hafeez Ahsan before us) that restoration after obtaining the succession (?) certificate was the practice in the Department and that no objection on this score had been raised till the actual hearing and hence we think that the decision of fact regarding delay as regards a fresh application (to be considered with reference to the Limitation Act) is not applicable to delay as regards resto ration (to be considered as a matter of laches) and we think that we should not extend it. The learned Custodian held that the power of attorney was not complete in that of the original three vendees only two had executed the power, and hence the share of the third deceased vendee would remain evacuee property. This reasoning overlooks the provisions of section 16 (2) that an application may be made by any party thereto and by any person lawfully authorised by such party. It is to be noted that this point was not raised in the revision application. The learned Custodian reversed the decision of the Addi tional Custodian that the appellant, not being an aggrieved person, was not competent to prosecute the appeal. We do not disagree, but the Additional Custodian also decided the appeal on merits as regards adequacy of consideration in addition to holding that an evacuee is not barred from obtaining confirmation. We have mentioned all the points upon which the learned Custodian thought fit to reverse the appellate order, and we consider that for errors of law apparent on the face of the record his order of revision cannot be sustained. Mr. Aziz has however contended that on other grounds this application should be dismissed. The Custodian, he h argues, is not an inferior Court, this argument is much too late in the day. Section 34, he argues, bars our jurisdiction: it is, however, well-settled that Art. 170 of the Constitution overrides section 34 of the Ordinance. We allow this petition and direct that the order of the Custodian be quashed and that respondent 3 do pay the costs of the petitioner of this petition. A. H. Order quashed.