1982 PLP 16 (CLC)

3. On the other hand, it was urged by the learned counsel for respon?dent No. 3 that another remedy, which was quite adequate, was available to the petitioner to avoid the impugned order and, therefore, he could not be permitted to assail the said order by means of a writ petition. Elaborating his contention, the learned counsel pointed out that the petitioner could make an application to the learned District Judge for setting aside the ex parte order passed against him and thus seeks rehearing of the revision petition by showing sufficient cause for his absence from the revisional Court. It was also argued by the learned counsel for the respondent No. 3 that since the learned District Judge had the jurisdiction to decide the revision petition, his order could not be challenged by means of this writ petition even if the same was erroneous. In this connection, he invited my attention to Muhammad Hussain Munir v. Sikandar Khan (P L D 1974 S C 139). In addition, it was submitted by him that the present petition is mala fide inasmuch as the petitioner is in possession of the disputed property and, therefore, he is interested in delaying the disposal of the suit by all possible means, including the filing of the instant petition.

4. In reply, it was maintained by the learned counsel for the petitioner that since the judgment of the learned District Judge as against the petitioner is no judgment in the eye of law, he could assail the same by invoking the constitutional jurisdiction of this Court without making an application to the learned District Judge for setting aside the ex parte order.

5. It has been incorrectly stated in the impugned judgment that "counsel for the respondents" in the revision petition had agreed to the recording of the statement of the petitioner in the said petition because, as explained above, res?pondent No. 1 in the revision petition had been proceeded against ex parte. The order of the learned District Judge is, therefore, based on the wrong assumption of a material fact, namely, that the counsel for respondent No. 1 before the learned District .fudge, who is petitiotier herein, had also agreed to the making of the said order. This, by itself, warrants quashment of the order under review.

6. The judgment of the learned District Judge reveals that the moment the learned counsel for respondent No. s in the civil revision, who had entered appearance before him, had agreed to the recording of the statement of the petitioner before the learned District Judge, he proceeded to accept the revision petition without taking care of the interest of respondent No. 1 is that petition, who had been proceeded against ex pane. Since respondent No.1 in the revision petition or his counsel was not a party to the concession made by the learned counsel for respondent No. 2 in the said petition, it was the duty of the learned District Judge to decide the petition on merits in so far as it was against respondent No.

1. If both the respondents before the learned District Judge had failed to put in appearance, could he accept the petition merely on the ground that it had not been contested by any one. The answer is, obviously, in the negative. The statement made by the learned counsel representing respondent No. 2 or the absence of respondent No. 1 did not absolve the learned District Judge of his responsibility to decide the civil revision on merits qua respon?dent No. 1 ; and since the learned District Judge had not decided the petition accordingly, his order as against respondent No. 1 is open to interference.

7. The Judgment of the learned District Judge also offends against the provisions of sub‑rule. (2) of rule 4 of Order XX of the Code of Civil Procedure. According to these provisions of law, it was incumbent on him to give, in, his judgment, reasons for deciding the revision petition against both the respondents in the said petition. By saying that the counsel for one of the respondents, namely, respondent No. 2, who had appeared before him, had no objection to the desired relief being granted to the petitioner in the civil revision, the learned District Judge had stated the reason for accepting the revision as against the said respondent but he had not, given any reason for allowing the revision as against the other respondent, that is, respondent No.

1. According to section 115 of the Code of Civil Procedure a revisional Court can interfere in the order of a subordinate Court "if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity." The judgment of the learned District Judge does not specify of the grounds given in section 115 for setting aside the order of the learned trial Court in so far as it was in favour of respondent No.

1. His judgment as against respondent No. 1, who is petitioner in the instant case, is, therefore, in obvious disregard of the relevant provisions of law.

8. Even if the impugned order of the learned District Judge had not been in contravention of the aforesaid provisions of the Code of Civil Procedure it could be interfered with for being in violation of the principles of natural justice. This is exactly what Munir has said at page 431 of his commentary on the Constitution of the Islamic Republic of Pakistan (1975 Edition). His relevant observations are as follows :‑‑ "Some of the important principles of natural justice, disregard has been considered lay Courts of certiorari to be a sufficient ground for quashing decisions of inferior tribunals are‑ "(1) that a man cannot be a Judge in his own cause ; (2) that no party is to be condemned unheard ; (3) the party must in good tithe know the precise case he is to meet ; and (4) that a party is entitled to know why a matter has been decided against him." , Two of the precedent cases which have been cited by the learned commentator at page 419, in support of his view have been reported as Divan Ziaul Haq and others v. The Government of West Pakistan (P L D 1956 Lah. 358), and Muhammad Ayub Khan v. The Custodian of Evacuee Property amp others (P L D 1963 Kar. 551). The order of the earned District Judge, which is under review, does not disclose why it had been made against the petitioner. His order qua the petitioner can, therefore, be knocked down for being violative of the rules of natural justice.

9. As for the contention of the learned counsel for respondent No. 3 that the petitioner could have the ex parte order set aside by approaching the learned District Judge and, therefore, the writ petition is not competent, even if it is assumed that the petitioner could make an application to the learned District Judge for setting aside the ex parse order by showing that he was prevented by sufficient cause from appearing before the learned District judge, his failure to do so does not debar this Court from interfering in the order under review due to the defects noted earlier, in the circumstances, petitioner's failure to make an application to the revisional Court for setting aside the impugned order which was passed ex parte against him, is of no consequence.

10. I am entirely in agreement with the learned counsel for respondent No. 3 that if an authority has the jurisdiction to make an order, his order cannot be challenged, by means of a writ petition, merely for the reason that the order is erroneous. The order before me is, however, no being assailed on the ground that it suffers from any error of judgment but on the plea that, legally speaking, it is nullity. I have already found that the learned District Judge had made the impugned order by assuming a material fact which did not exist. It is also not a speaking order and is in contravention of the provisions of sub‑rule (2) of rule 4 of Order XX of the Code of Civil Procedure as well as the rules of natural justice; Therefore, his order is Of no legal effect. In this view of the matter, the case of Muhammad Hussain Munir is of no avail to the respondents.

11. For the reasons stated above, the order of learned District Judge as against the petitioner calls for interference by this Court in exercise of its constitutional jurisdiction. I, therefore, accept the writ petition, quash the said order and direct that the learned District Judge shall re‑decide the revisions petition in the light of the aforesaid observations and according to law. There shall be no order as to costs.

12. Learned counsel for the petitioner and the learned counsel for respondent No. 3 are directed to inform their respective clients to appear before the learned District Judge on 17th January, 1981. In view of the grievance voiced by the learned counsel for respondent .No. 3 that the petitioner is interested in delaying the disposal of the suit brought against him, the learned District Judge shall re‑decide the revision petition within two months of the receipt of this order. M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.