P L D 1988 Quetta 60 (PLP)

AMIR‑UL‑MULK MENGAL, J.‑‑The facts giving rise to this constitutional petition have a long and chequered history dating as back as 1946 when predecessor‑in‑interest of the petitioner Syed Ibrahim Shah purchased 34 acres 19 rods and 2 poles of agricultural land situated in Mahal Laila Karez, Mouza Karezat Beleli, Tappa Beleli, Tehsil and District Quetta from its .Hindu owner. Lands so purchased were mutated in record of rights vide mutations Nos.7 and 8 attested on 29‑4‑1950 (Annexures A/1 and A/2). The Jamabandi of the same is annexed with the petition as A/3 and A /4. It was the case of the petitioner that after purchase, he took over and remained in possession of the land in dispute till 1957 when he left for Sind and in his absence respondent No.l took over the possession of the lands in dispute. On return he asked the respondent and his brother to vacate the lands but they refused. In August, 1960 Syed Ibrahim Shah filed a complaint under section 447, P.P.C. against the respondent No.l and his brother Abdul Ahad. The matter was referred to Additional Deputy Commissioner, Quetta to be tried under F.C.R. The case was pending until December, 1964 when F.C.R. was declared void and consequently withdrawn. Instead Ordinance .III of 1965 was promulgated and the matter was referred to a Tribunal constituted under the said Ordinance. Respondent No.l in a statement recorded on 24‑10‑1960 disassociated himself from the lands in dispute contending that he was neither in occupation of the said lands nor is concerned in any manner, with the same. So he was left out and no action was taken by the Tribunal. However, proceedings continued against his brother Abdul Ahad whose statement was recorded on 23‑11‑1961 in which he, inter alia, stated that Ibrahim Shah was not owner of the lands but the lands in dispute belong to one Hindu Utam Chand. He also .claimed permissive possession, as according to him he was cultivating it with the permission. of Tota Ram, attorney of widow of Utam‑Chand. The proceedings continued when Abdul Ghaffar respondent No.l re‑appeared on the scene, pointing out to the Tribunal that original Hindu owner had filed a suit against Ibrahim Shah in respect of property in dispute before the Senior Civil Judge, Quetta and requested the Tribunal to wait till the decision of the civil suit. Ultimately the civil suit was dismissed on 3‑12‑1966 and on 7‑2‑1987 the District Magistrate, returned the file to the Tribunal with directions to dispose of the case without any further delay. During this period Ordinance III of 1965 was repealed and replaced by Criminal Law (Special Provisions) Ordinance II of 1968. The members of the Tribunal ultimately gave a unanimous award holding Abdul Ahad guilty under section 447, P.P.C. and recommended that he be evicted from the lands in dispute. One Agha Nasir Ali, Assistant Commissioner/ President of the Tribunal, recorded a dissenting opinion on 19‑5‑1969. The Deputy Commissioner, however, vide order dated 4‑2‑1970 accepted the unanimous award of the Members and disagreeing with the opinion of the President of the Tribunal convicted Abdul Ahad and sentenced him to pay a fine of Rs.200 or to suffer three months' S.I. in default. No appeal was filed by Abdul Ahad against the aforesaid sentence nor he vacated the lands in dispute despite the order of conviction. Adverting to the nature of entitlement, it may be pointed out that Ibrahim Shah purchased the property from one Lackmi Bai. It is further evident that Lackmi Bai owned two shares out of total undivided 10 shares of which 8 shares belonged to Haji Abdul Qadir. Said Haji Abdul Qadir sold about 22 acres of land to Abdul Ahad. Abdul Ahad became joint owner with Ibrahim Shah‑in the lands mentioned in Mutation No.7. In 1969 Abdul Ahad transferred the land in the name of respondent No.l Abdul Ghaffar. After coming to know about this transaction, Ibrahim Shah filed two‑suits for pre‑emption regarding both pieces of land on 18‑5‑1970. The second set of litigation started on 11‑7‑1970 when Ibrahim Shah filed a suit for possession of the property in dispute against respondent No.l and Abdul Ahad under the provisions of Civil Procedure (Special Provisions) Ordinance I of 1968 (hereinafter referred to as the Ordinance). The District Magistrate referred all the three suits i.e. two connected suits for pre‑emption and the suit for possession to a Tribunal. Respondent No.l appearing for himself and as attorney of his brother Abdul Ahad, filed written statement in which he did not claim ownership of the land. The relevant para is reproduced in Urdu as under:‑ At this juncture another development took place. Abdul Ghaffar respondent No.l filed art application before the Custodian of Evacuee Property on 16‑9‑1972 alleging that the property in dispute was "hidden evacuee property" and further alleging that mutation entries in the name of the petitioner's father were "fictitious". The Member, Board of Revenue exercising powers as Custodian of Evacuee Properties Baluchistan accepted the said application and on 31‑3‑1973 declared property mentioned in Mutation No.18 to be "hidden Evacuee Property" and directed the Revenue . Department to declare the entries made in the name of Syed Ibrahim Shah as null and void and to enter the same in the name of the original owner and directed the Custodian Department to take over the property and dispose it of according to rules. It was further ordered that 114th of the said property be given to applicant Abdul Ghaffar as reward. Being aggrieved of the aforesaid order Ibrahim Shah filed a Constitutional Petition No.44‑A of 1973 which was decided in favour of Ibrahim Shah on 26‑9‑1977 and order of M.B.R. was set aside. After the judgment was passed by the High Court in C.P.No.44‑A of 1973, the pending matters were again taken up by the Tribunal which gave its final award on 22‑1‑1980. In this unanimous award Tribunal recommended decree in favour of Ibrahim Shah with regard to the lands in dispute and also recommended that suit for pre‑emption be decreed as well. The Additional Deputy Commissioner, Quetta while accepting the recommendations of the Tribunal passed decrees in favour of Ibrahim Shah on 2‑2‑1980. Respondent No.l went in appeal against the said judgment on 2‑4‑1980 before the Commissioner, Quetta Division. The appeal regarding suit for possession was dismissed .by Commissioner on 17‑11‑1980‑ but the Commissioner was pleased to remand the suits to the Tribunal about pre‑emption. Respondent Abdul Ghaffar then filed a revision petition on 29‑12‑1980 before Member, Board of Revenue, Baluchistan. It is pertinent to point out that this revision petition was heard and disposed of by Agha Nasir Ali who had given dissenting opinion to the unanimous award of the Tribunal, in case under section 447, P.P.C. and had observed that the lands belonged to Abdul Ahad. However, Member, Board of Revenue, Baluchistan accepted the petition and remanded the case back to the Tribunal on 6‑2‑1982. After this Ibrahim Shah, the predecessor‑in‑interest of the present petitioner, died. Thus, present petitioners filed a Constitutional Petition (C.P. No.103 of 1982) against order of M.B.R. In this Court which was dismissed by this Court on 29‑4‑1985. Being aggrieved from the orders of this Court., the petitioners filed a petition for Leave to Appeal (C.M.P.No.20‑Q/85 in C.S.A. No.190 of 1985) and leave was granted. The appeal was ultimately accepted by the Hon'ble Supreme Court and order dated 29‑4‑1985 passed by this Court in C.P.No.103 of 1982 was set aside and the case was remanded to the Member Board of Revenue Baluchistan for hearing of the revision petition in accordance with law. After remand, the Member Board of Revenue again ordered the remand of the case for fresh trial on 25‑10‑1987, which is under attack before us. Heard Mr. Yahya Bakhtiar for the petitioners and Mr. Basharatullah for the respondents. Mr. Yahya Bakhtiar inter alia, contended that the grounds on which the learned Member Board of Revenue remanded the case for fresh trial were not available in law and in view of the judgment of the Supreme Court. The first around was regarding non‑framing of issues and it was authoritatively decided that non‑framing of issues cannot form basis for remand of the case if the parties have not been prejudiced. It was secondly contended that in fact the title of the ownership of the lands was not at all challenged so much so that in the written statement the ownership of the petitioner was admitted. Therefore, to remand the case for determination of title was out of question. It was thirdly submitted that the question of limitation was not raised in the written statement nor it was raised before the appellate authority. According to Mr. Yahya Bakhtiar the respondent No.l while filing the revision petition before the M.B.R. firstly omitted to raise question of limitation. It was subsequently raised by filing an amended petition. The case, therefore, could not have been remanded on . a ground which was raised at such a belated stage. On the other hand Mr. Basharatullah the learned counsel for respondent No. 1 strongly opposed the Constitutional Petition contending firstly that the M.B.R. had the jurisdiction to pass orders under section 12 of the Ordinance. According to Mr. Basharatullah if M.B.R. finds material irregularity or defect in the proceedings, it is competent to set aside orders passed in such proceedings within the meaning of section 12 of the Ordinance. It was further canvassed that it is out of the domain of writ jurisdiction to examine the propriety of reasons passed by a competent authority, if otherwise prima facie reasons exist to the satisfaction of the' authority exercising jurisdiction. Furthermore, the Tribunal decided the dispute without recording any evidence. It was yet argued that no writ lies against an order of remand. It was lastly contended that the judgments of the Courts produced before Tribunal were inadmissible in evidence being in contravention of Articles 54 to 57 of Qanun‑e‑Shahadat Order, 1984. We have gone through the judgment of the Member Board of Revenue Baluchistan in order to peruse the grounds on which the M.B.R. was pleased to remand the case. It transpires that the learned M.B.R. associated himself with the arguments advanced by the counsel of the petitioner. The first question raised before M.B.R, was that the Deputy Commissioner failed to comply with provisions of section 4 of the Ordinance inasmuch as the question of limitation was not determined and no issues were framed as envisaged in section 4 of the Ordinance. The second ground which prevailed with M.B.R, was. that decision of a criminal case was made basis of the finding of the Tribunal, which was accepted by the Deputy Commissioner. It was observed that the civil suit could not have been decided on the' basis of the criminal judgment. The third argument which convinced the learned M.B.R. was that after remanding two connected cases in pre‑emption suits, the Commissioner was obliged to have remanded this civil suit as well. The fourth ground which found support was that order passed by the Commissioner was not a speaking order and that it amounted to ,perpetuate illegalities. The learned M.B.R. in concluding para of its order observed:‑ "As the proceedings in the cases have been taken in complete disregard of the mandatory provisions of the Civil Procedure (Special Provisions) Ordinance 1968 which have been pointed out above so the order of the learned Additional Commissioner dated 17‑11‑1980 and that of the Additional Deputy Commissioner Quetta dated 24‑2‑1980 are set aside. As the Tribunal had not at all recorded any evidence in this case with respect to the title of the parties and other rights, in question, so that matter cannot be adjudicated upon in the Board of Revenue any further. The case is, therefore, remanded for trial afresh to the Deputy Commissioner, Quetta. in accordance with law." It is to be seen whether‑ the grounds were available for remand of the case and whether M.B.R. acted with lawful authority in remanding the case. The first ground relates to section 4 of the Ordinance which reads:‑ "

4. Constitution of and reference of dispute to a Tribunal.‑‑(1) Where any party to a dispute, which is required to be adjudicated upon in accordance with the provisions of this Ordinance, not being a dispute arising in or relating to any area specified in the Second Schedule, makes, or all parries to such dispute arising in or relating to any area specified in the Second Schedule, make an application in writing to the Deputy Commissioner, for the adjudication or settlement of such dispute, the Deputy Commissioner shall constitute' a Tribunal in accordance with section 5, and by order in writing, refer the dispute to the Tribunal for a finding on such matters or issues as may be specified in the order." (2) A dispute shall not be referred to a Tribunal if a civil suit in respect thereof would be barred by the provisions of the Limitation Act, 1908 (IX of 1908). (3)??????????? (a)?????????? (b)????????? The question to be dilated upon is whether framing of issue is mandatory under section 4(1) of the Ordinance. The words used are that the Deputy Commissioner shall refer the dispute to the Tribunal for a finding on such "matters" or "issues" as may be specified in the order. The word "matters" means necessary facts constituting claim or defence. According to Black's Law Dictionary "Matter" also means substantial facts forming basis of claim or defence; facts material to issue, substance as distinguished from form; transaction, event, occurrence, subject‑matter of controversy, and "issue" has been defined "a single, certain, and material point, deduced by the pleadings of the parties, which is affirmed on the one side and denied on' other. Issues arise out of the pleadings when a fact or conclusion of law is maintained by one party and controverted by the other". In fact framing of issues is generally required so as to facilitate the proceedings and to bring the parties at a stage where they should know the exact dispute between them, and to enable them to adduce evidence which is relevant in ‑ determination and adjudication of the points and facts which are really in contest. The purpose of framing of issues, therefore, is to enable the parties to avoid bringing of irrelevant evidence and to confine their evidence to the points in dispute thus to get the dispute settled without wandering in wilderness. Where, therefore, the parties know the dispute and adduce evidence on the same, non‑framing of issues would not be fatal to the case provided the parties have ‑ not been prejudiced in any manner. Here in case in hand the learned M.S.R. has failed to point out any prejudice caused to the respondents by non‑framing of issues. In absence of any such finding non‑framing of issues cannot form basis for remand of case. It has been observed in this very case by the Hon'ble Supreme Court that "non‑framing of issues had been made a ground without recording the finding that in fact any prejudice had been caused by such a failure to any of the parties to the litigation. Unless such be finding, a remand could riot be ordered simply because of omission to frame issues. Reference has also been made to P L D 1971 S C 82 wherein it was observed:‑ "If issues are not framed but allegations are made in the plaint and they are challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue." Ire view of the observations of the Hon'ble Supreme Court, no room is left for further determination of this point. However, it may be observed that in scheme of the Ordinance such technicalities and defects may not be extended to nullify the decisions which are otherwise just and based on material facts. Therefore, the framers of the Ordinance have used the words "Matters" and "Issues" as specified in the order. This clearly indicates that it has been left to the B discretion of the Deputy Commissioner, as the referring authority, either to frame formal issues for determination by the Tribunal or. refer the matter as it is to the Tribunal provided the parties are not prejudiced, It may further be observed that no such objection wash ever raised before the Tribunal during the long pendency of the matter. We, therefore, hold that non‑framing of issues in this case has not prejudiced the parties and was no ground for remanding the, case. Now adverting to the second point, upon which the M.B.R. was convinced in remanding the case we may refer to section 4(2) of the Ordinance reproduced above. It is laid down therein that a dispute shall not be referred to a Tribunal if a civil suit in respect thereof would be barred by provisions of the Limitation Act, 1908 (IX of 1908) . This point was almost exhaustively dealt with in the previous judgment of the Hon'ble Supreme Court in this case. While re‑affirming the ratio decidendi in case of Muhammad Ishaque v . Shah Muhammad and others reported in 1985 S C M R 799 it was observed "that the, point of limitation may be raised at the earliest. ii, absence of the question of limitation having been raised in pleadings itself, or before the trial Court or in the memo. of revision petition before the learned Member, Board of Revenue, the revisional authority was not justified in making it a ground for remanding the case taking it to be failure of justice." We are, with all respects in agreement with the aforesaid observations. It is, therefore, observed unhesitatingly that remanding the case on the question of limitation by the A. B . R. in the circumstances of this case was neither justified nor available. The third point requiring determination was that the Tribunal did not record any evidence and forwarded its recommendations on the basis of some documents i.e. judgments of the Courts etc. According to Mr. Basharatullah, the order passed by Deputy Commissioner on the basis of award given by Tribunal without recording evidence was a nullity and in contravention of the provisions of the Ordinance. Section 8 of the Ordinance deals with the procedure before the Tribunal. For convenience sake it is hereby reproduced:‑ ?

8. Procedure before the Tribunal.‑‑(1) For the purpose of coming to a finding on the matter or issue referred to it, the Tribunal shall give opportunity to the parties to appear before it and take or hear, in such manner as it may think fit, such evidence as may be adduced on behalf of the parties or as may be called for by the Tribunal; Provided .......................... Provided further???.. (2) The Tribunal shall give the parties an opportunity of cross? examining the witnesses deposing against them." (3)???????? ......................... (4) : (5) :..................... " From the plain .reading of the aforesaid section it becomes abundantly clear that recording of evidence verbatim by the Tribunal is not necessary. However the Tribunal has to ‑"take" evidence or "near" evidence in such a manner as it may think fit. It is thus clear that the case cannot be decided without evidence but the. manner in which the evidence is to .be recorded has been left to the discretion of the Tribunal, In that event the opposite party shall be given an opportunity to cross‑examine the witnesses if any. "The conspicuous feature of this case being that petitioners sought for possession of the lands in dispute and the title of the petitioners was not repudiated in .written statement by respondent No. l. In paras. 4 and 5 of the written statement it has been clearly admitted by the respondent No. l as under:‑ Thus there was no need to adduce evidence other than the judgments produced before the Tribunal. The ground that the respondent was not afforded an opportunity to cross‑examine the witnesses does not arise in this case for the simple reason firstly that the title was not disputed and secondly that ample opportunity was afforded to the respondents but they did not avail the same. In such view of the matter we are not convinced that right of cross?-examination was not given to respondent or respondent was prejudiced in any manner. Besides this the observations of the Hon'bIe Supreme Court on the issue are also verb" pertinent: It was observed that "the language of the law "take" or "hear" in such manner as it may think fit, cannot by any reasoning be whittled down or curtailed to make recording of evidence verbatim necessarily". As such it was also not a ground available for remand of the case. Before proceeding further it would be appropriate to dispose of the legal objections raised by Mr. Basharatullah regarding the admissibility of the judgments in evidence produced by petitioners and relied upon by the Tribunal. It was mainly contended that as per provisions of Article 57 of Qanun‑e‑Shahadat, 1984 judgments orders or decrees, other than those mentioned in articles 54, 55 and 56, are irrelevant unless the existence of such judgment, order or decree is a fact in issue or relevant in some other provision of this Order. It may be pointed out that Article 57 of Qanun‑e‑Shahadat is corresponding to section 43 of Evidence Act, 1872. It is well‑settled rule of law that no man should be bound by the decision, or judgment of a Court in which he was not a party. But in this case the judgments which were produced were between the same parties or persons claiming rights through the same parties, therefore, such Judgments are relevant and admissible in evidence. C.P.No.44‑A of 1973 determining rights of the petitioners was also between the same parties. Similarly the decision given in criminal case was also in respect of the same property and between the same parties. Here i1 tray be pointed out that the fact that Tribunal solely based its award on a criminal judgment is devoid of any force because the Tribunal took into consideration the judgment in .C.P.No.44‑A of 1973 and other documents and it cannot, therefore, be said that the award o1 the Tribunal was exclusively based on a decision of the criminal case. Arguments so advanced thus carry no force. We now. proceed to dilate upon the legal objections raised by Mr. Basharatullah about the competency of this Constitutional Petition. Two fold submissions were made in this regard. Firstly that no writ lies against an order of remand and secondly that propriety of reasons given by revisional authority cannot be assailed in Constitutional Petition. To supplement the first limb of argument reliance was placed on a judgment of this Court reported in P L D, 1986 Quetta

130. It appears that in fact it was an obiter dictum. However, it was observe that no writ lies against remand unless the order is ex facie perverse or order is passed in the exercise of jurisdiction not vested in such forum or is otherwise void. Fact remains that in this very case Constitutional Petition No.103 of 1982 was admitted for hearing and finally disposed of on merits against a remand order. Similarly leave was granted and appeal allowed by the Hon'ble Supreme Court against remand order of learned Member, Board of Revenue. The aforesaid judgments are thus, a complete answer to the objections so raised. It may be observed that the law as it stands at present does not contemplate to provide a legal cover to orders though passes with jurisdiction but are found unjust and perverse on the face of it, hence if the grounds on basis of which certain orders have been passed or reasons advanced for passing of such orders are found non‑existing or if such grounds being already dilated upon and found flimsy by superior Courts, or perverse on* the face of it or are against settled legal norms, then interference in writ jurisdiction of such order is both justified and called for. The learned Member Board of Revenue is competent in view of section 12 of the Ordinance to exercise jurisdiction only when he is satisfied that material irregularity has been committed by the forums below in order to justify interference and such material irregularity or defect in the proceedings has resulted in miscarriage of justice. The grounds on which the jurisdiction was exercised were extraneous and thus order of remand in the circumstances of the present case was in excess of jurisdiction vested in him under section 12 of the Ordinance. It may further be taken note of that it was Abdul Ghaffar who preferred revision petition to the Member, Board of Revenue, although in his statement before the Tribunal he categorically stated that he is neither in possession nor concerned in any manner with the property in dispute. After such statement he was exonerated of the charge in proceedings under section 447, P.P.C. Likewise he did not claim the lands of the predecessor‑in‑interest of the petitioners. Thus, in addition to the grounds already dilated upon he was additionally estopped by conduct to have changed his plea. For all the above reasons we are inclined to hold that impugned order dated 25‑10‑1987 has been passed without lawful authority ands thus is of no legal effect. Consequently we accept this petition ands set aside the order of remand of Member, Board of Revenue dated? 25‑10‑1987. The orders passed by Deputy Commissioner and Additional Commissioner, Quetta Division are hereby upheld. There will be no order as to costs. A.A./308/Q??????????????????????????????????????????????????????????????????????????????????? Petition accepted.