P L D 1983 Quetta 8 (PLP)

The petitioner had filed an appeal praying that the decree granted by Majlis-e-Shoora Kalat may be set aside. This appeal was admitted as revision on 13-12-1980 by the then Chief Justice. On 13-12-1981 the Advocate-General submitted that since the valuation of the suit is less than Rs. 50,000 and appeal being not competent this appeal may be treated as revision. The counsel of the respondent Mr. Amir-ul-Mulk Mengal had at that time consented to conversion of appeal to revision but with the reservation that he had objection regarding limitation which would be raised at the time of regular hearing.

2. The respondent had filed suit for declaration that be was the owner of the property describe therein. The suit was filed in the year 1973 in the Court of Deputy Commissioner, Kharan which was transferred for disposal to the Assistant Commissioner, Kharan soon after blrt the Assistant Commissioner, Kharan sat over the file for five years. The Deputy Commissioner who was the defendant in the suit filed his written statement and the Assistant Commissioner framed issues and sent the case to the Kazi, Kharan for trial. The Kazi, Kharan granted a decree against which appeal was preferred before Majlis-e-Shoora which was decided on 19-7-1979. The present revision was filed as an appeal on 21-5-1980 and this is why that plea of limitation was raised by the counsel of the respondent.

3. Before adverting to the case on its merits I would like to consider the objection about limitation raised by the respondent. The case has been decided by Kazi, Kharan and thereafter Majlis-e-Shoora under the procedure prescribed under Dastoor-ul-Amal Diwani, Kalat. The contention of the counsel of the respondent is that revision is filed under section 24 of the Dastoor-ul-Amal Diwani wherein a time limit of 60 days is prescribed for filing such revision. The Advocate-General on the other hand referred to clause (c) of the said section 24 of the Dastoor-ul-Amal Diwani which provided that an appeal would lie against final decree, and a revision would lie against interim or interlocutory order, and since the Dastoor-ul-Amal Diwani, Kalat does not provide for revision against final order so this revision is to be treated as one under section 11.5, C. P. C. and not one under section 24 of the Dastoorul-Amal Diwani, Kalat. He has also relied upon the section 25 of the Dastoor-ul-Amal Diwani, saying that the higher authorities have always the jurisdiction of giving necessary instruction to the subordinate Courts. This jurisdiction is not at par with revisional jurisdiction. It is a supervisory jurisdiction meant to channelize regulate the work of the subordinate Courts but does not arm the superior authority to reverse or modify any order passed by a subordinate Court,

4. The counsel of the respondent had lost sight of very important aspect of the case. The question of applicability of the provisions of Dasturul-Amal Diwani, Kalat to civil proceedings in civil Courts in Kalat Division had come up for consideration in the Full Bench case of Mir Said Muhammad v. Mir Chakkar and others (P L D 1975 Quetta 43). The decision in this case was as under :- "Held : Dastoor-ul-Amal Diwani to the extent that there are provisions on the same subject in the Code of Civil Procedure, 1908, though not identical stood repealed, and accordingly section 24 of the Dastoor-ulAmal Diwani stood repealed by section 100 of the Code of Civil Procedure, 1908 being the provision contained in the C. P. C. on the same subject, notwithstanding the fact that while in the former Second Appeals would lie both on questions of fact and law, in the latter they would be confined to law only." In this case their Lordships had also considered the case of Dost Muhammad v. Rais (P L D 1962 Quetta 82). The decision in the case of Dost Muhammad v. Syed Sadig and Full Bench decision in case Mir Saead Muhammad v. Mir Chakkar are also followed in the case of Maulvi Abdul Hameed v. Subzal and another (P L D 1975 Quetta 1).

5. This is settled law that where there is a provision in the Dastoor-ulAmal Diwani with corresponding provision in the Civil Procedure Code, the later would prevail and the provisions in the Dastoor-ul-Amal Diwani- Kalat would be deemed to have been repealed by application of section 4(1) of Central Laws (Statute Reforms) Ordinance XXI of 1960. In the case of Saeed Muhammad v. Chakkar it was held that section 24 by operation of this Ordinance stood repealed. This observation related to section 24 of Dastoor-ul-Amal Diwani, Kalat so far it related to second appeal. I am of the view that section 4 of the Central Laws (Statute Reforms) Ordinance XXI of 1960 also repeals the provisions of section 24 of the Dastoor-ul-Amal Diwani so far as it relates to revisions and provisions of section 115, C. P. C. would be the one applying to the revision. Since no time limit is prescribed for filing revision under section 115, C. P. C. the objection raised by the counsel of the respondent has no force.

6. The suit had been decreed by the Kazi, Kharan on the basis of the oral evidence led by the respondent. The plaintiff had not been examined and he had filed an unattested affidavit. The defendant/petitioner had filed certain documents to show that respondent did not have proprietary rights but were tenant and they had been paying Haq-i-Malkana to the petitioner. The Kazi in his judgment has not considered any document produced by the parties. When the appeal came up before the Majlis-e-Shoora the counsel of the petitioner i. e. the Government Pleader pointed out to the Majlis-eShoora that the trial Court had not considered the documentary evidence produced by the appellant/petitioner. The Government Pleader also requested that he may be allowed to prove those documents which are very material for the decision of the case but the appellate Court did not allow him to do so.

7. The appellate Court observed that the documents tendered by the petitioner had not been properly proved and so these documents were ignored. On the other hand the Majlis-e-Shoora gave full probative value to the receipt of payment of Land Revenue filed by the respondent. It was considered by Majlis-e-Shoora as proved and exhibited although the receipt does not bear any mark nor has been proved formally. As far as the respondent's document is concerned the Majlis-e-Shoora accepted the same without any hesitation and ignored the documents filed by the petitioner. It has been observed b them that the documents are copies and the documents even if admitted would not establish the title of the petitioner. This rejection of documentary evidence in summary manner was not proper. There is not a word about the impact of the Khasra Girdawari 1964-65 on the rights of the parties. The counsel of the respondent had urged that Khasra Girdawari is no presumptive evidence of ownership. Assuming the correctness of the argument, it is yet to be seen by the trial Courts as to what is the evidentiary value of the documents filed.

8. The trial Court allowed the plaintiff and defendant to file affidavits in support of their respective contention yet no reasons has been given for doing so in disregard of Order XIX, rule 1, C. P. C. The departure from the normal procedure should have been justified by the Kazi. Had the plaintiff and witnesses of the defendants been brought to witness-box, the document produced by the defendants representative and filed by the plaintiff could be proved properly. The Kazi bypassed the provision of the Code regarding method of recording evidence resulting in miscarriage of justice.

9. The petitioner's case is also that the suit was time-barred. An issue had been framed by the Assistant Commissioner yet the finding of the Kazi on this point is just one sentence that the suit is within time being within twelve years. He has not said as to when time started running. He ha given no indication as to how it falls under Article 142 of Schedule I of the Limitation Act. It is not a finding at all but a casual observation.

10. The counsel of the respondent has drawn my attention to the fact that the case was kept pending by the Assistant Commissioner for five years. It took more than five years for the disposal of the case. He is right there. The Deputy Commissioner and the Assistant Commissioner, Kharan have shown extreme negligence and disinterestedness in the proceedings before the Kazi and .the Majlis-e-Shoora recurrence of which will be availed. The judgment of the two Courts below are set aside. The Kazi is directed to decide the case afresh after giving opportunity to the parties to lead evidence., The suit shall be disposed of by the Kazi within three months. S. A. H. Petition allowed.