1980 PLP 351 (SCMR)

(a) Punjab Tenancy Act (XVI of 1887)‑ ‑‑‑ S. 77 (3), Second Group (e)‑Suit for recovery of arrears of rent and ejectment of tenant‑Ex parte proceeding against respondent/tenant by Assistant Collector Ist Grade‑Collector on appeal remanding case for fresh decision "after giving full opportunity to parties" holding service of notice on respondent being not proper‑Member, Board of Revenue holding it wrong for Assistant Collector to have passed one order for giving two relief one qua recovery of arrears and other for ejectment‑Hell, respondent according to findings of fact throughout being not served both parties to be afforded opportunity of hearing‑Collector competent on acceptance of appeal to remand case for fresh decision Petitioner in person. Nemo for Respondents. Date of hearing : 2nd December, 1979. MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal is sought against order dated 16th .September, 1979 of tire Lahore High Court whereby petitioner's writ petition, arising out of a case of his alleged tenant's eject ment from land, was dismissed in limine. Petitioner's suit for ejectment of Muhammad Ismail respondent was decreed ex parte, by A. C. Ist Grade. The respondent was also ordered to pay arrears of rent. While accepting the appeal of the respondent, it was held by the Collector that service of notice on the respondent was not proper and that question of ownership of the petitioner (with reference to M. L. R. 89/91) also required determination. The case was accordingly remanded for fresh decision "after giving full opportunity to the parties". It needs to be mentioned that the plea which prevailed with the Collector for setting aside the ex parte proceeding and decree was that the petitioner; had intentionally furnished wrong address of the respondent, both for the original as also substituted service. The petitioner challenged the Collector's order before the Additional Commissioner (Revenue) who held that although it was not for the Collector to explore the effect of M. L. R. 89/91 upon the ownership/allotment of the petitioner, nevertheless, his order of remand, for decision "on merits after enabling both the parties an opportunity of being heard" was affirmed. On further challenge by the petitioner, a learned Member, Board of Revenue, held, that it was wrong for the Assistant Commissioner to have passed one order for giving two relief s one qua recovery of arrears of rent and other for ejectment of the tenant. While dealing with the order of the Additional Commissioner, it was however, held, that the same, was "well based". The petitioner while arguing his petition, has raised several technical objections regarding the order passed against him by the revenue authorities including: that the Collector had no power to remand the case to the Assistant Commissioner; that the latter had no jurisdiction to deal with the matter after the expiry of sixty days (from the original institution of the ejectment suit; that the Additional Collector was wrong in treating the petitioner's appeal as a revision; and that the learned Member, Board of Revenue, was wrong in assuming that two matters one of ejectment and the other of recovery of rent, could not be disposed off by one order. Although the petitioner did not raise any ground with regard to the setting aside of the ex parte‑ proceedings on ground of wrong address of the respondent, however, on our asking ‑ to explain the position, he stated that the requirement of law was satisfied if the notice was sent to the Revenue Estate concerned. After hearing the petitioner at length .we do not consider it a fit case for grant of leave to appeal. The respondent, according to findings of fact throughout, was in fact not served. Both the parties would be now afforded opportunity of hearing. The Collector was competent when accepting the appeal to remand the case for fresh decision. There was no legal bar in this behalf. The Assistant Collector also would have jurisdiction in the matter, on account of the order of remand. The orders of the Revenue authorities in so far as the merits of the question of ex pane proceedings are concerned, do not suffer from any infirmity. The High Court has rightly refused to interfere in its writ jurisdiction which undoubtedly is dis cretionary. We see no force in this petition. It is accordingly dismissed. Petition dismissed.