2005 PLP 755 (MLD)

NADIR KHAN DURRANI, J.

This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed against the order dated 12-10-1998 passed by Majlis-e-Shoora, Loralai whereby revision petition filed by the predecessor-in-interest of the petitioners under section 115 (2) C.P.C. read with section 3, 4-B of Balochistan Civil Disputes (Shariat Application) Regulation 1976 (hereinafter referred to as the Regulation) against the order dated 1-6-1998 passed by Qazi Musakhail has been dismissed with following observation:-- "On behalf of counsel for petitioner Mr. Nasir Shah Baz Advocate present who filed written arguments. Counsel for respondent and respondent himself present. We have heard the arguments and written arguments of the parties. It is the plea of the petitioner that the provision of section 115 C.P.C. shall apply to the proceedings under the Shariat Regulation, but we are not induced to agree with the plea of petitioner for the reason that under the provision of Balochistan Civil Dispute (Shariat Application) Regulation, 1976 this Court has no power to adjudicate upon revisional maters. Hence revision petition is dismissed." The facts relevant for the disposal of this petition are that the predecessor-in-interest of the petitioners filed suit for pre-emption of the property known as Basharatwala (property in dispute) against Mehmood and eight others. The suit was decreed in favour of the plaintiff vide judgment and decree dated 9-12-1989 passed by Majlis-e-Shoora, Loralai. In pursuance of the decree the property is dispute was transferred in the name of the predecessor-in-interest of the petitioners. Subsequently in August, 1995 the processor-in-interest of the petitioners filed the suit for declaration and permanent injunction against respondents Nos.1 and 3 others claiming that the property already decreed in his favour vide judgment and decree dated 9-12-1989 is being interfered by the defendants and prayed for decree in the following terms:-- The suit was resisted by respondent No.1 and other defendants by filing of written statement dated 3-9-1995, however, subsequently application dated 13-9-1995 was filed before Qazi Musakhail whereby the parties agreed to abide by the judgment and decree dated 9-12-1989 passed by Majlis-e-Shoora in favour of the predecessor-in-interest of the petitioners. Accordingly the suit was disposed of vide order dated 13-9-1995 which reads as under:- The predecessor-in-interest of the petitioners thereafter filed execution application as the defendants were alleged to be violating the order dated 13-9-1995. The learned Qazi Musakhail vide order dated 31-12-1995 issued directions to the Assistant Commissioner, Musakhail for implementation of the judgment and decree dated 9-12-1989 passed by Majlis-e-Shoora. The respondent No.1 and others defendants preferred appeal before Majli-e-Shoora challenging the order dated 31-12-1995 passed by Qazi Muskhail. The appeal was disposed of by means of order dated 14-12-1996 in the following terms:-- "Abdul Qayum Advocate for appellant present. Nasir Shah Baz Advocate for respondent present. Counsel for appellant states that he is not bound by order dated 31-12-1995 and he is bound by order dated 13-9-1995 passed by Qazi Musakhail on the compromise filed by the parties. The learned A.C Musakhail is directed to do needful in accordance with judgment/decree dated 13-9-1995." After disposal of the appeal, the learned Assistant Commissioner Musakhel passed order dated 19-5-1997 which reads as under:-- The documents available on the record reflect that the dispute between the parties could not be settled as the predecessor-in-interest of the petitioner/plaintiff approached the Deputy Commissioner, Musakhail vide application dated 25-2-1998 seeking implementation of the judgment and decree dated 13-9-1995. The learned Deputy Commissioner Musakhail on receiving of the application issued following directions to Naib Tehsildar Musakhail:-- On receiving of above directions Naib Tehsildar Musakhail ordered Jamadar Levies Durug to implement the order of Deputy Commissioner. Meanwhile learned Qazi Musakhail issued Letter No.24 dated 1-6-1998 to Tehsildar Musakhail for correction of the mutation/Initqal, the letter so issued reads as under:-- The predecessor-in-interest the petitioners being aggrieved by the above direction/order preferred revision petition before Majlis-e-Shoora which has been dismissed by the impugned order dated 12-10-1998 in the terms mentioned hereinabove. Mr. Basharatullah, the learned counsel for the petitioner without going into merits of the case contended that the Majlis-e-Shoora without due application of mind dismissed the revision petition without taking into consideration the provisions of Articles 3, 4 and 5 of the Regulation as under the said provisions Code of Civil Procedure 1908 (C.P.C.) have been made applicable mutatis mutandis to the proceedings under the Regulation and Majlis-e-Shoora is to be deemed to be District Court within the meaning of the C.P.C., hence in view of section 115(2), C.P.C., Majlis-e-Shoora being District Court has revisional jurisdiction, therefore, dismissal of the petition on the ground that Majlis-e-Shoora has no power to exercise revisional authority being against the law need to be set aside and the matter need to be remanded to Majlis-e-Shoora for its decision on merits in accordance with law. Mr. Mujeeb Ahmed Hashmi, the learned counsel for the respondent No.1 though half-heartedly made an attempt to controvert the above contentions so raised by the learned counsel for the petitioner and argued that Article 4(b) of the Regulation empowers Majlis-e-Shoora only to hear the first appeal in respect of judgments, decrees and orders of Court of Qazi and shall also be the Court of original jurisdiction which reflects the intention of law not to extend revisional authority to Majlis-e-Shoora, however, he being unable to dispute the legal position about applicability of C.P.C. in the proceedings under the Regulation and Majlis-e-Shoora to be deemed to be a District Court within the meaning of C.P.C., impliedly conceded to submissions made by the learned counsel for the petitioner and expressed his no objection on setting aside the impugned order dated 28-12-1999 and remand of the matter to Majlis-e-Shoora for disposal of the Revision Petition on its merits as per law. The submissions made by the learned counsel for the parties considered and the law on the subject examined. There is no dispute between the parties about settlement of the civil disputes by Court of Qazi and Majlis-e-Shoora by applying the provisions of the Regulations however, as order impugned in this petition has not been passed on merits and the petitioner has been knocked out on technical ground that Majlis-e-Shoora has no jurisdiction to hear revision, therefore, we refrain ourselves from going into the merits of the case as the only point which require settlement is that whether Majlis-e-Shoora functioning under the Regulation has jurisdiction to exercise the authority under section 115, C.P.C. There is no dispute between the parties about applicability of the provisions of Code of Civil Procedure 1908 to the proceedings made under the Regulation. However, to have the true account of the relevant provisions Article 3 of the Regulation is reproduced as under:-- "Notwithstanding anything contained in this Regulation the provisions of Code of Civil Procedure 1908 hereinafter referred to as Code the Evidence Act, 1872, and the Limitation Act, 1908, shall mutatis mutandis apply to the proceedings under this Regulation." Furthermore, by means of sub-clause (2) of Article 4 of the Regulation Majlis-e-Shoora is to be deemed to be a District Court within the meaning of C.P.C. The above previsions of the Regulation when examined in the light of section 115(2) C.P.C., Majlis-e-Shoora deemed to be District Court is found to be having jurisdiction to exercise the powers conferred on the High Court by the subsection 1 of section 115, C.P.C. in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. Hence there can be no cavil to the legal position that Majlis-e-Shoora acting under the Regulation deemed to be District Court has powers to exercise the revisional authority under section 115, C.P.C. This Court in its judgment dated 3-5-2000 in Civil Revision No.188 of 1999 (authored by one of us Mr. Justice Raja Fayyaz Ahmad (CJ) has already dealt with the issue in length holding that Majlis-e-Shoora acting under the Regulation has revisional powers by virtue of clause 2 of Article 4 of the Regulation. The observations setting the issue at rest read as under:-- Bare perusal of the provisions of Article 3 of the Regulation reveals that notwithstanding any thing contained in the Regulation, the provisions of Code of Civil Procedure have been made applicable to the proceedings under the Regulation, consequently; the provisions of sub-clause (b) of clause (1) of Article 4 of the Regulation which provides that Majlis-e-Shoora shall be the first Appellate Court in respect of judgments, decrees and orders of Court of Qazi will not come in conflict with the provisions of Article 3 of the Regulation and therefore, the order passed by the Qazi Court Muslim Bagh being not appealable within the meaning of Order XLIII, C.P.C. was immune from being attacked in appeal in the light of the above said provisions of Article 4(1)(b) of the Regulation, and; therefore, the learned Majlis-e-Shoora appropriately held that the order passed by the Qazi Muslim Bagh was not made appealable by Order XLIII C.P.C. and thus rightly treated the appeal filed by the petitioner to be not maintainable, but all the same the learned Majlis-e-Shoora held that since the revisional powers under C.P.C. are not available to it therefore, the learned Court dismissed the appeal. It may be seen that by virtue of Clause (2) of Article 4 of the Regulation it has been provided that every Majlis-e-Shoora shall be deemed to be a District Court within the meaning of the Code (C.P.C.) therefore, such of the provisions of the Regulation shall be read in conjunction with the provisions of Article 3 of the Regulation which provides that notwithstanding anything contained in the Regulation the provisions of C.P.C. shall apply to the proceedings under the Regulation; required effect whereof would be that the Majlis-e-Shoora simultaneously being the District Court within the meaning of C.P.C. shall have the jurisdiction to exercise revisional powers as a District Court within the purview of section 115 C.P.C. in case of an interlocutory order not made appealable by any of the provisions of C.P.C. It appears that he learned Majlis-e-Shoora while dealing with the matter about the competency of the appeal failed to take notice of the provisions of clause 2 of Article 4 of the Regulation whereby for the purposes of the Regulation, every Majlis-e-Shoora has been declared to be a District Court within the meaning of Civil Procedure Code and redundancy to such provisions of the Regulation cannot be attributed, accordingly; I am of the considered view that the order passed by the Qazi Muslim Bagh since was not appealable within the purview of Order XLIII C.P.C., therefore, the same could have been validly assailed by filing revision under section 115 C.P.C. before the learned Majlis-e-Shora, Loralai and learned Appellate Court to have in the exercise of inherent powers vesting in it under section 115 C.P.C. converted the same into revision in the interest of justice, but the learned Appellate Court dismissed the appeal as above said any by holding that the revisional powers are not available to the Majlis-e-Shoora, despite of the fact that every Majlis-e-Shoora under the aforesaid provisions of the Regulation has been declared to be a District Court' and; in my considered view the Majlis-e-Shoora being Appellate Court simultaneously enjoys the revisional powers by virtue of Cluase (2) of Article-4 of the Regulation." Having regard to the above provisions of the regulation and the judgment referred to hereinabove we have no alternative but to hold that the order dated 12-10-1998 passed by Majlis-e-Shoora, Loralai is against the provisions of the Regulation which we declare as illegal, accordingly the same is set aside and the revision petition filed by the petitioner is deemed to be pending which is to be decided on merits in accordance with law. The grievance of the petition is redressed. Petition is allowed in the above terms, with no order as to costs. H.B.T./63/Q Petition allowed.