1982 PLP 1105 (SCMR)

NASIM HASAN SHAH, J.‑This appeal by special leave raises a short question, namely, how far the High Court was justified in the exercise of its constitutional jurisdiction to reverse an order passed by a statutory authority (Settlement Commissioner) dismissing certain revision petitions filed before it on the ground of limitation. This question arises in the following cir cumstances: ‑ The Additional Settlement Commissioner, Jhelum, accepted three appeals by a consolidated order, which were filed by the appellants and respondents 4 and

5. The respondents 1‑3 filed three revision petitions to challenge this order before the Settlement Commissioner (Land), Rawalpindi. These petitions were instituted on 10‑10‑1964. in fact, in the Court of the District Judge, Jhelum in the belief that be was also exercising the powers of the Settlement Commissioner (Land), Rawalpindi for Jhelum District. Subsequently, the learned District Judge, by his order dated 17‑12‑1964 ordered the return of these petitions to the respondents on the ground that he had no jurisdiction to entertain the said petitions as they related to agricultural land. The respondents, therefore, re‑filed the three revision petitions before the Settlement Commissioner, Rawalpindi Division on 21‑12‑1964 and prayed for the condonation of delay in fitting them in the first instance in the wrong Court of the District Judge under a bona fide mistake as to his jurisdiction. The learned Settlement Commissioner, by his order dated 22‑5‑1975, dismissed the revision petition, as, in his opinion, it was the duty of the appellants to ascertain the facts for themselves and then to have filed them within time in a competent Court having jurisdiction. In his opinion, the relevant notification conferring the jurisdiction on the Settlement Commissioner (Land) in matters relating to agricultural land did not brook any, misunderstanding or confusion on the point. The exact words of the learned Settlement Commissioner in this behalf may usefully be reproduced below :‑ "Counsel for the petitioner argues that the petitions were filed in the Court of the District Judge on account of the confusion prevailing at that time regarding the transfer of revisional powers to the District Judge. I have seen notification No. F. I. (1)/64 SEI, dated 12‑2‑1964 by which revisional powers in respect of land cases were conferred on Additional Commissioner (Revenue) and also Notification No. SRO 367 (K)/64 dated 15‑5‑1964 which conferred powers of Settlement Commissioners on District Judge in respect of only urban properties excluding land. The two notifications were issued under separate Acts. The powers under the Displaced Persons (Land Settlement Act, 1958, were conferred on Additional Commissioner earlier than the powers in respect of urban properties other than lands on the District Judges. Before the publication of these two notifications Settlement Commissioners who were neither Additional Commissioners (Revenue) nor District Judges used to hear cases of both categories. Before a party decided to go to the Court of the District Judge or the Additional Commissioner (Revenue) in a revision petition, it was natural that he should have ascertained who was the competent Court of jurisdiction after the abolition of the power of the previous Settlement Commis sioners, and in these circumstances there could be no question of any misunderstanding or confusion on this point. The petitioners chose to file the petitions in the Court of the District Judge in spite of the clear provision of the above‑mentioned notifications and, therefore, I see no reason to condone the delay in filing the petition in this court. ` All the revision petitions are, therefore, dismissed as time‑barred." In these circumstances, the respondents then filed a writ petition in the Lahore High Court challenging the validity of the orders passed by the Settlement Commissioner. The learned Judge in the High Court by his order dated 21‑1‑1.976 accepted their writ petition holding that there was sufficient cause for condonation of delay in the revision petitions filed by them before the Settlement Commissioner which could not have been dismissed as time barred. The following extract from the judgment of the High Court explains the point of view of the learned Judge: "Learned counsel appearing in support of this petition frankly conceded that the forum chosen in the first instance was not available to the petitioners (respondents herein) but submitted that the petitioners (respondents herein) could not be penalised for the mistake committed by his counsel " "It was further submitted that no doubt delay of each day had to be explained but while considering the question of condonation, the Courts usually lean in favour of condoning it and it is only in excep tional cases when a party is guilty of negligence or has slept over his right that delay of each day had to be explained ." "On behalf of the respondents (appellants herein) it was contended that the Settlement Commissioner exercised his discretion against the petitioners (respondents herein). As such, the impugned order was not subject to any ‑ exception in the constitutional jurisdiction of this Court ." The learned Judge with respect to these submissions observed as under :‑‑ "After considering the submissions made by the learned counsel for the parties I am inclined to agree that the petitioners (respondents herein) should not be made to suffer for the fault of his Advocate. There is nothing on the record to show that after the petitions had been returned for presentation to the proper Court, those remained with the petitioners (respondents herein). In the normal course of events, the presumption would be that those remained in the custody of the counsel for the petitioners (respondents herein)." "There is nothing on the record from which it could be inferred that the petitioners (respondents herein) was guilty of negligence. Moreover, it is matter of common knowledge that when the District Judge had been delegated powers under the Displaced Persons (Compensation and Rehabilitation) Act, the litigant public was put to unnecessary hard ship and trouble because they were being pushed from one place to another, the delegation was for a very short period and, therefore, became uncertain for the public to know with certainty where to go for the relief. Therefore, it will be hard to penalise the petitioners especially when the delay was only for four days. I am, therefore, of the view that there was sufficient cause for condonation of delay and the petitions filed by the petitioners could not be thrown out on the ground of limitation." Leave to appeal was granted to consider whether under Article 98 of the late Constitution (of 1962) it was open to the learned Judge of the High Court to sit in appeal over the finding recorded by the Settlement Commissioner and substitute his own order for that of the statutory authority. We have heard Mr. S. Inayat Hussain Shah, Raja Muhammad Akram and Mr. Sher Zaman Khan in support of the point of view advanced by the appellants and Maulvi Siraj‑ul‑Haq on behalf of the respondents. The learned counsel for the appellants has submitted that there‑ was no jurisdic tional defect in the order passed by the Settlement Commissioner and, there fore, the constitutional jurisdiction could not have been exercised and reliance was placed on Muhammad Hussain Munir and others v. Sikandar and others (P.L L' 1974 S C 139). It was further submitted that the Settlement Commissioner had held that the respondents had been guilty of negligence. This was a finding of fact and could not have been interfered with in the exercise of constitutional jurisdiction. Reliance was placed on Rahim Shah v. The Chief Election Commissioner of Pakistan and another (P L D 1973 S C 24). In this behalf, it was further argued that there was no material on the record to give the Settlement Commissioner or the High Court the authority to condone the delay in exercise of the powers under section 14 (2) of the Limitation Act. Under the said provisions of law, time can be excluded where the proceedings have been prosecuted in a wrong forum with due diligence and in good faith. Good faith is defined in section 2 (7) to mean something, which has been done with due care and attention. No material whatsoever was placed before the Settlement Commissioner or the High Court such as an affidavit by the counsel of the party that he had been misled by the uncertainty of law, and, therefore, the High Court had condoned the delay on assumptions for which there was no material placed on the record. Furthermore, it was admitted that there was delay of four days and as each day's delay had to be explained, which was not done, the High Court could not have condoned the delay. It was lastly submitted that the impugned order of the Settlement Commissioner was passed on 22‑5‑1965 while the writ petition to challenge it was filed in January, 1967 the petition was, therefore, barred by laches and should have been dismissed on that ground alone. In reply, Maulvi Siraj‑ul‑Haq submitted that, if the provisions of sec tion 14 of Limitation Act were attracted, the petition would not be barred by limitation. In this connection, he pointed out that, as 60 days are allowed for filing of revision petitions the revision in this case was filed only 28 days after the passing of the order of the learned Additional Settlement Commis sioner. His order was passed on 12‑9‑1964 while the revision petition was filed in the Court of the District Judge on 10‑10‑1964. The revision remained pending before the District Judge up to 17‑12‑1964 when it was ordered to be returned. This was received back on 19‑12‑1964 and was filed before the right forum (Settlement Commissioner (Lands), Rawalpindi) on 21‑12‑1964 within two days. Consequently the time spent while the revision remained pending before the District Judge was to be excluded and the provisions of section 14 of the Limitation Act held to be applicable there was no delay. The short question, thus, is whether the learned Settlement Commissioner was right when he held that section 14 was not applicable or whether the High Court was right when it held that it was, indeed, applicable? this not being a case of negligence? There is no doubt that there was considerable amount of uncertainty during those days with respect to the forum where revisions could be filed. The learned Settlement Commissioner has held that after the power of hearing the revision petitions was taken away from the Settlement Commissioners there were two notifications in the field. By Notification No. F. 1 (1)/64 SE1 dated 12‑2‑1964 the revisional powers in respect of land cases were conferred on Additional Commissioner (Revenue) and by Notification No. SRO‑367 (K)/64, dated 15‑5‑1964 powers were conferred in respect of urban properties excluding land to Settlement Commissioner on the District Judge. Consequently, the party which wanted to file a revision petition after the abolition of the powers of the Settlement Commissioner should have, in view of the notifications aforementioned, ascertained as to which was the competent Court of jurisdiction. There is some force in these observations. However, the learned counsel for the parties, who bad conducted these cases before us frankly conceded that these notifications were not readily available. So far as the first mentioned notification dated 12‑2‑1964 is concerned it was published for the first time in a legal publication sometimes in 1973 namely, in the commentaries on the Displaced Persons (Land Settlement) Act by M. A. Latif; and so far as the other notification dated 15‑5‑1964 is concerned it was submitted that it has not been published in any legal publication so far. However, we have found that the second mentioned notification was published in P L D 1964 Central Statutes at p. 145, but the fact remains that all the learned counsel including the counsel for the appellants, who are interested in showing that the law was not uncertain could not trace out the above notification during all these years. As for the first notification is concerned, it was not available until 1973. Even the learned District Judges, who were entrusted with revisional powers, were not sure as to the category of cases which were triable by them, namely, whether it was only cases of urban properties or those pertaining to agricultural lands or both? The order dated 17‑12‑1974 passed by the learned District Judge, Jhelum, whereby he ordered the return of the revision petitions for presentation in the proper Court shows that some circular dated 29‑5‑1964 was issued wherein it was clarified that only cages of urban properties should be entertained and not those pertaining to rural properties. Notwithstanding, the said circular, the office of the District Judge, Jhelum accepted the revision petitions filed by the respondents, although in the title of the said petitions it was stated that it was meant for the Settlement Commissioner (Lands), Rawalpindi. In these circumstances, the ignorance of the learned counsel for the respondents about correct forum in which the revision petitions ought to have been filed q would not amount to negligence and it was case of bona fide mistake. Hence the case would fall with in the purview of section 14 of the Limitation Act and the time spent before the District Judge, Jhelum was liable to be excluded and the revision petitions, therefore, were not barred by time. As for the plea that the High Court had overlooked the ground of laches in filing of the constitutional petition, suffice it to say that leave to appeal has not been granted for consideration of this question and hence we are not inclined to enter into this aspect of the matter. The judgment of the High Court appears to be just and fair, intended as it is to secure the disposal of the case on the merits, instead of on technicalities. We are, therefore, not inclined to interfere with the judgment of the High Court. This appeal must, therefore, fail and is, accordingly, dismissed. The parties are left to bear their own costs. Appeal dismissed.