Mehr Muhammad Yousaf, the learned Additional District Judge, Mianwali has dismissed the appeal in limine aide order dated 30.1.2004, which order has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that the same Judicial officer had dealt with the matter and passed effective orders as a trial Court when he was Civil Judge. It is contended the learned counsel that he could not have heard the matter and the order passed by him is without lawful authority. The learned counsel for the respondents on the other hand contends that since such an objection was not taken before the learned Additional District Judge, the order cannot be assailed on that ground.
2. The respective contentions of the learned counsel have been considered.
3. Proceedings in the matter emanated from a civil suit in which a decree was passed by Mehr Muhammad Yousaf, the then Senior Civil Judge, Mianwali on 18.6.2001. The petitioners filed an application under Section 12(2) of the Code of Civil Procedure, 1908 qua the same, which was again dealt with and was disposed of by the same learned Presiding Officer namely Mehr Muhammad Yousaf, Senior Civil Judge, Mianwali on 5.9.2001. A fresh application under Section 12(2) of the Code of Civil Procedure, 1908 was filed by the petitioner for setting aside the decree dated 18.6.2001 (passed. by Mehr Muhammad Yousaf the then Civil Judge), which application was rejected on 11.12.2003 by Mr. Taimur Hayat Gondal, Senior Civil Judge, Mianwali in view of the withdrawal and dismissal of the earlier application of the petitioners under Section 12 (2) of the Code of Civil Procedure, 1908. This was the order appealed against by the petitioners, which appeal was heard and dismissed in limine by Mehr Muhammad Yousaf as appellate Court who had by then been promoted and was Additional District Judge, Mianwali. The said order has been passed by making explicit reference to decree dated 18.6.2001, which had been passed by himself in the suit and the dismissal of the application under Section 12 (2) of the Code of Civil Procedure, 1908 again 'by himself vide order dated 5.9.2001. In such context the question arises as to whether he should have heard or disposed of the appeal, which related to the effective orders passed by him as a lower Court. Suffice it to observe that when a lis is taken from the lower Court to the higher forum it deserve to be heard and dealt with by a judicial Officer having no nexus and who is capable of applying independent mind and who had not dean with the matter in the lower forum. Otherwise it can legitimately be complained by the party and construed that the same Officer has acted as lower as well as the appellate forum and his cause had suffered from a prejudice and bias.
4. Needless to state that principles of natural justice which are regarded as fundamental basis for administration of justice cannot be disregarded or overlooked. There is one such principle often quoted and applied that no man is judge in his own cause "nemo judgex in re sua". The rationale behind and idea underlying is that a judge is disqualified from determining any case in which Ire may be or may fairly be suspected to be biased. There is equally a well known saying that justice should not only be done, but should manifestly and undoubtedly be seen to be done". By dealing and deciding a case an Officer in the Court of first instance and then hearing and deciding it as appellate/revisional Court, such well entrenched principles, are disregarded, which vitiate the proceedings and consequently order is null and void. The principle is so fundamentally well defined and universally accepted as a basic concept of law and natural justice, that no one can think of violating the same. It indeed disqualifies the judge to hear and decide such a matter. It is only when such concepts of administration of justice are kept in view, that fair and even handed justice can be expected from the Court.
5. In the instant case the learned Additional District Judge should not have heard and dealt with the appeal but by doing so he acted in violation of the law and principles of natural justice and rendered his order as of no legal effect.
6. Insofar as the contention of the learned counsel for the 'respondents that no such objection was raised before the learned Additional District Judge is concerned, needless to observe that such lack of jurisdiction vitiates the proceedings and the consequential order as nullity. Even the consent of a party and non-objection before the forum cannot be construed to have conferred jurisdiction.
In Hai Abdul Sattar v. Additional District Judge, Rawalpindi and others (1984 SCMR 925), relying upon an earlier decision of the Supreme Court in (PLD 1971 S.C. 197), it was held that there was no absolute rule that objection to jurisdiction if had not been, taken before the lower forum could in no case be taken before the High Court in writ jurisdiction. The objection of the learned counsel for the respondent is thus un-tenable and is repelled. In view of the above, the order impugned is not sustainable and is declared so. The petition is accordingly accepted, as a consequence whereof the appeal filed by petitioners would be deemed pending,. which will now be heard and decided in accordance with law by the learned District Judge, Mianwali. The parties to cause their representation before him on 21.6.2004. No order as to costs.