2010 PLP 763 (MLD)

RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.

Through this petition, the petitioner Karim Bakhsh has assailed the judgment and decree, dated 29-3-2004 passed by the learned Additional Judge, Layyah and judgment and decree, dated 14-4-2003 passed by Nazim/Chairman Union Council No.36 Paharpur, Tehsil and District, Layyah/respondent No.2 whereby revision petition of the petitioner was dismissed.

2. Brief facts of the case are that respondent No.4 i.e. Bashir Ahmad made an application on 1-3-2003 to the Nazim Union Council 36 Pahar Tehsil claiming specific performance of contract of sale regarding the agricultural land or in the alternative recovery of Rs.26100 with the consent of the partiers, respondent No.2 Nazim referred the matter to the arbitrator through Malik Ghulam Yasin Lumberdar Mauza. The said arbitration gave the award in favour of respondent No.4 whereupon respondent No.2 i.e. Nazim while agreeing with the award passed the decree Rs.24000 and parcha decree was prepared by the Nazim/Chairman Conciliation Court. The petitioner challenged the decision of respondent No.4/Additional District Judge, Layyah by filing the revision who dismissed the same on 29-3-2004. Hence this petition.

3. Learned counsel for the petitioner has argued that the execution proceedings are pending before the Court of Civil Judge 1st Class, Layyah; that under the Conciliation Courts Ordinance, 1961 Nazim figures nowhere and decision by the Nazim is absolutely coram non judice; that the Conciliation Court is in fact a body consisting of Chairman and two representatives to be nominated in the prescribed manner by each of the parties to the dispute but in the instant case the respondent No.2 Union Nazim had acted as such alone which was not only against the law but the same was without lawful authority and jurisdiction; that the requirement of law had not been fulfilled, therefore, any decision rendered by Nazim is of no legal consequences as far as the rights of the petitioner are concerned. In view of this legal position, the order passed by Nazim as well as by the appellate Court i.e. District Judge is not valid in the eye of law.

4. This writ petition was admitted for regular hearing on 30-4-2005 and execution proceeding was stayed. No one has put up appearance on behalf of respondent No.4. Therefore, he is proceeded ex parte.

5. I have heard the arguments advanced by the learned counsel for the petitioner and have perused the record.

6. Admittedly Conciliation Court constituted under the Conciliation Courts Ordinance (XLIV of 1961) which consists of chairman and two representatives to be nominated in terms of section 5 of the Ordinance. The order, dated 10-4-2003 indicates and subsequent decree sheet has been, passed by Malik Bashir Ahmad, Nazim Union Council under Rule 23 whereby the petitioner was directed to pay Rs.24000 which is only signed by the Nazim.

7. The Conciliation Court constituted under the abstante Clause of section 3, which categorically denotes, all cases falling under Part-I of the schedule shall be referred to Conciliation Courts Ordinance, 1961. The word "refer" cannot be equated with the word "instituted" so respondent No.2 as Conciliation Court cannot entertain any point directly. Thus the proceedings before the Nazim were without jurisdiction and without lawful authority.

8. The application of respondent No.4 cannot be considered as a plaint. Pecuniary jurisdiction under subsection (2) of the section 7 of the Ordinance deals with the power of the Conciliation Court. Under Part-I section 3 of the Schedule, Ordinance, 1961, clearly laid down the pecuniary jurisdiction of the Conciliation Court up to Rs.20,000 in the matter of civil case. The respondent No.2 i.e. Conciliation Court, has exceeded pecuniary jurisdiction in passing the impugned order, dated 10-3-2003 and thus committed illegality. In this view of the matter proceeding initiated by respondent No.2 was without jurisdiction and subsequently proceedings before respondents Nos. 1 and 3 i.e. Additional District Judge and Executing Court cannot be sustained in the eye of law. It is established principle of law that if basic order is without jurisdiction or coram non judice, subsequent order will meet the same fate and super structure on the same will fall. It is established principle of law that if law requires that act must be done in a particular way. It should be done in that manner as prescribed by law. Respondent No.2 has passed the impugned order, while sitting alone which is violative of law. Section 5 of the Ordinance, 1961 clearly laid down that Conciliation Court shall be a body consisting of a Chairman and two representatives to be nominated in the prescribed manner by each of the parties. Nothing is available on the record which indicates that petitioner has nominated any person as his representative. Thus proceedings and impugned order passed by respondent No.2 is without law full authority and same is without jurisdiction. In this view of the matter same is set aside.

9. Resultantly this petition is allowed and both the orders dated 29-3-2004 and 14-4-2004 passed by respondents Nos. 1 and 2 are set aside and matter is remitted to respondent No.2 who is directed to pass a fresh order in the matter in accordance with law after haring both the sides. M.H./K-53/L Case remanded.