2008 PLP 1609 (CLC)

ALI AKBAR QURESHI, J.

This constitutional petition is directed against the order dated 16-1-2008 passed by the Member (Colonies) Board of Revenue, Punjab Lahore, whereby the review petition of the petitioner was dismissed on the ground of unauthorized representation. The petitioner being aggrieved of the orders dated 8-2-2003 and 31-3-2004 passed by the Member (Judicial)-III Board of Revenue, Punjab Lahore, filed a review petition. The said review petition was diarised as Review No.518 of 2004 and the Full Board referred the matter to Member Colonies Board of Revenue to determine the issue, whether the review petition has been lawfully filed under the provisions of Code of Civil Procedure and Legal Practitioners and Bar Councils Act, 1973. The learned Member (Colonies), Board of Revenue, after issuing the notice to the respondents, heard the matter and dismissed review petition on the following grounds:

(i) The pleader/Advocate without lawful authority filed the review petition. (ii) The Review petition as well as Wakalatnama does not bear the signatures of the parties. (iii) The non-signing of Wakalatnama as well as pleadings is violative to the provisions of C.P.C. as well as section 24 of Legal Practitioners and Bar Councils Act, 1973. (iv) That no Advocate can appear or act for any person in. any Court unless appointed by such person for a written statement.

2. The learned counsel for the petitioner contended that the respondent without providing any opportunity to cure the defect if any, passed the impugned order. Next contended that learned Member (Colonies), Board of Revenue was under the legal obligation to decide the review petition on merits instead of non-suiting the petitioner on technical grounds. He also added that in any case the defect was curable but no such efforts was made by the learned Member to rectify the same. To fortify his contentions the learned counsel relied upon "Liaqat Hayat and 5 others v. Muhammad Sarwar alias Feroz Ali and 2 others 1985 SCMR 1386 and "Chairman, P.M.D.C. and another v. Khiyal Nawaz Thattak 1990 MLD 2203. Lastly contended that in the aforesaid situation, the Honourable Supreme Court of Pakistan has ruled that the defects as pointed out by the Member (Colonies) Board of Revenue could have been cured by providing an opportunity to the petitioner.

3. Conversely the learned counsel for the private respondent submitted that the defects as pointed out by the learned Member (Colonies) Board of Revenue first time came into the knowledge of the petitioner in the year 2004 but no efforts was made by the petitioner to cure or to rectify the same, so at this belated stage such type of objections cannot be raised: Further argued that the order which was impugned by the petitioner through the review petition, has already been complied with so nothing is pending before the Member Board of Revenue. At this stage the learned counsel for the petitioner submitted that Sanad Sultani, has not been issued till today.

4. I have heard the learned counsel for the parties and have perused the record.

5. It is now well-established proposition of law that the defects as pointed out by the learned Member Board of Revenue are curable and can be cured and rectified if objected by the other side. It is also evident from the record that the learned Member Board of Revenue neither issued any notice nor specific date was fixed to cure the defects. In fact it was the responsibility of Member (Colonies) Board of Revenue to rectify these defects by summoning the petitioner and in case of failure, the learned Member Board of Revenue could have passed the impugned order herein. The review if provided in the statute, is a substantive remedy, should be decided on merits, instead of dismissing the same on technicalities, as the law, justice and fairplay always favour the adjudication on merits. The Honourable Supreme Court of Pakistan as well as this Court has already laid down the principle that such type of defects can be cured at any stage of the case by summoning the petitioner or providing a reasonable opportunity to the learned counsel but no such effort was made by the learned Member Board of Revenue. Without commenting upon the facts of the case, it is appropriate to remand the matter to the learned Member (Colonies) Board of Revenue Punjab Lahore to re-decide the matter on merits. The learned Member Board of Revenue may cure or rectify the defects if so required after providing an opportunity to the petitioner.

6. In this view of the matter the order dated 16-1-2008 is hereby set aside and the case is remanded to the Member (Colonies) Board of Revenue to re-decide the same afresh on merits strictly in accordance with law preferably within a period of two months. This Constitutional petition is disposed of with no order as to costs. M.B.A./J-35/L Case remanded.