MUHAMMAD AFZAL ZULLAH, J.-This order will dispose of the reference made in Writ Petition No. 309/11 of 1966 and Writ Petitions Nos. 319/11 of 1967, 320/11 of 1967 and 386/11 of 1967. The reference has been made by a learned Single Judge of this Court (as he then was) Sajjad Ahmad, J. To answer the following question :- "Whether the relevant authority acting under the Land Settlement Act in an appeal filed under section 18 of that Act could condone the delay in the filing of the appeal, in the absence of any express provision in the Act itself to allow such extension and section 5 of the Limitation Act not having been made applicable."
The facts in Writ Petition No. 309/11 of 1966, out of which this reference arose, are narrated in the next paragraph.
2. Syed Mahmood Alam, the petitioner was confirmed land in mauza Bhule Dasanawal, Tehsil Ferozewala, District Sheikhupura, by an order, dated the 28th of January 1964. Syed Mehdi Hussain, respondent No. 1, challenged that order by means of an appeal which was accepted and the allotment in favour of the petitioner was set aside by the order of the Deputy Settlement Commissioner, dated the 27th of November 1964 ; on the ground that the respondent was a sitting allottee in the village while the petitioner had got his units transferred to that village subsequently, and thus could not claim the superior right over the respondent. The petitioner had raised the objection of bar of limitation as, according to him, the appeal was filed long after the prescribed time. This objection was considered and decided by the Deputy Settlement Commissioner in the following words :- "As the appellant was not present at the time when allotment was proposed or later on confirmed to the respondent, he, therefore, had no knowledge of these proceedings until he later on came to know of this allotment and preferred an appeal. I, therefore, feel that there is sufficient cause for not preferring the appeal in time."
The petitioner filed a revision against the appellate order. In the memorandum of revision, the fact 'Shat a time-barred appeal was accepted is no doubt mentioned in paragraphs Nos. 1 and 3-B which narrated the facts ; but the question of limitation is not mentioned as a ground in paragraph No. 4, which exclusively dealt with the grounds on which the revision petition was moved It is, however, stated in the affidavit filed by the petitioner with the writ petition that the petitioner had urged the point of limitation before the Settlement Commissioner in revision. The Settlement Commissioner, vide his order, dated the 17th of February 1966, confirmed the appellate order. He, however, did not specifically deal with the question of the appeal being barred by limitation. The writ petition came up for hearing before our learned brother Sajjad- Ahmad, J., who after having narrated the facts considered the question of limitation as one of general importance ; and has made the reference in the form quoted above.
The facts about Writ Petition No. 386/R of 1967 are that the petitioner in that case claimed to be the sitting allottee of village Haveli in Tehsil Dipalpur, District Sahiwal. On 24th July 1964, some land in that village was confirmed to a person who, according to the petitioner, had no preferential right over the petitioner. The petitioner filed time-barred appeal claiming in the grounds thereof that the allotment in dispute was intentionally kept as a secret, with the connivance of the Patwari who was himself interested in the land ; because the real uncle of the Patwari, namely, Nazeer Hussain, ostensibly, purchased the same land from the allottee. The appeal was dismissed as time-barred because, according to the appellate authority, section 5 of Limitation Act was not applicable. Same grounds were urged before the Settlement and Rehabilitation Commis--sioner in revision who dismissed the same holding that section 5 of the Limitation Act was not applicable. Neither the appellate nor the revisional authority went into the petitioner's plea that he had no knowledge of the allotment in dispute and that the same was a clandestine affair based on fraud committed by the Patwari. None of the two authorities considered the merits of the case. Aggrieved by the orders of the Settlement authorities he then filed the writ petition in the High Court.
All these writ petitions involved the same question of law. Therefore, they were admitted to hearing and were ordered to be heard along with Writ Petition No. 309/R of 1966 in which, as stated earlier, the reference had already been made to consider the question of limitation in appeals filed under section 18 of the Displaced Persons (Land Settlement) Act, 1958.
3. The question posed in the reference, at the first sight, appears to be a simple one whether or not section 5 of the Limitation Act is applicable to appeals filed under section 18 of the Displaced Persons (Land Settlement) Act, 1958. But in the light of the facts narrated above relating to the four writ petitions in which the above question has arisen, there are three subsidiary questions which have also to be considered. They are :- (i)What is the effect on the question of limitation, if the order under appeal is a nullity as being without jurisdiction or is tainted with fraud?
(ii) What is the effect of an order, for the purpose of limitation in appeal, when the same was not passed in presence of the aggrieved person and he had no notice of the same?
(iii) In case the appeal is time-barred, whether the revisional authority has any power to interfere in the same matter, despite the fact that the appeal before the lower forum was barred by limitation
4. It is an admitted position that section 5 of the Limitation Act has not been specifically made applicable to appeals filed under section 18 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter called the Act). All the provisions of that Act have been carefully noted. Chapter I deals with the commencement, definitions and information relating 'to certain land to be furnished.
Chapters 11 and III deal with the acquisition of land, constitution and management of various pools created under the Act. Chapter IV deals with the appoint--ment of Settlement authorities and their duties. In this Chapter the powers of the Chief Settlement Commissioner in respect of cancellation of allotment and, disposal of the property have also been dealt with. Chapter V has provided for the allotment of land in the. Compensation Pool, constituted under Chapter III and the permanent settlement of displaced persons. Chapter VI which deals with appeals, revision and review, provides for appeals in section 18, review within the Settlement hierarchy under sections 19 and 20 and a revision to the High Court under section 21. The finality of the orders passed in this Chapter is provided in section 22. Nowhere in this Chapter it is provided or indirectly indicated that the provisions of section 5 of the Limitation Act will be applicable. Chapter VII deals with the matters of procedure and the provisions relating to immunity in respect of actions taken by the Settlement authorities. Chapter VIII has provided for the penalties and cognizance of offences. Chapter IX contains general provisions as to delegation, transfer of cases, fees, appearance before Settlement authorities and making of rules. Under section 34, Displaced Persons (Land Settlement) Rules, 1959 have been framed. No provision in those rules indicates that section 5 of the Limitation Act was intended to be applicable to appeals filed under the Act. Therefore, we have come to the conclusion that the Act neither expressly nor impliedly provides for the application of section 5 of the Limitation Act to appeals filed under section 18 thereof. On this limited question, all the learned counsel appearing for all the parties are agreed.
5. The next question which arises is whether or not section 5 of the Limitation Act is applicable to appeals filed under section 18 of the Act, by its own force. In order to appreciate the correct position, it will be of advantage to reproduce section 5 of the Limitation Act:- "5. Extension of period in certain cases.-Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force, may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.-The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."
It is clear from the wording of this section that standing by itself, it does not show whether or not it will be applicable to the special and local laws. Therefore in order to find out the position in respect thereof, the provisions contained in section 29 of the Limitation Act have to be noted. Section 29 reads as follows:- "29. Savings.-(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law ; and
(b) the remaining provisions of this Act shall not apply.
(3) Nothing in this Act shall apply to suits under the Divorce Act.
(4) Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend."
It is to be noted that section 29 is the only section, and in a separate Chapter, which deals with the saving and repeals. Thus this section will have to be interpreted keeping in view that it is a special provision dealing with the subject of "saving", in so far as it relates to special and local laws. No argument was raised nor the position was contested that the Displaced Persons (Land Settlement)
Act falls within the category of special/local laws. We have examined this question with particular reference to the provisions in that Act, relating to the allotment of land, falling in the pools to displaced persons and the permanent settlement of such land, and are of the opinion that it is undoubtedly a special law. The plain reading of section 29, particularly the opening part of subsection (2) thereof, shows that section 3 of the Limitation Act has been made applicable to a special/local law, when the period of limitation prescribed in that law is different from the one mentioned in the First Schedule to the Limitation Act. Apart from that, it is provided in clause (a) of subsection (2) that for the purpose of determining the period of limitation under the special and local laws, the provisions of section 4, sections 9 to 18 and section 22 of the Limitation Act have been made directly applicable ; unless any such law expressly excludes the application of these provisions or any of them. All other provisions of the Limitation Act, which include section 5 also, have been specifically excluded from application to special/local laws by virtue of clause (b) of subsection (2). Subsections (1), (3) and (4) also deal with specific exclusions in so far as the application of the Limitation Act is concerned. As indicated earlier, the provisions contained in section 29 are special provisions dealing with the "saving" ; therefore, they will have to be applied to the whole of the Act wherever the question of application of any other provision of the Limitation Act to special/local laws, arises. Thus section 5 of the Limitation Act will have, perforce, to be read as subject to section 29 of that Act. The reading of section 5 itself shows that it is not of universal application to all the laws. The following words contained therein are significant :- "Any appeal or application . . . . . Or any other application to which this section may be made applicable "by or under any enactment" for the time being in force . . . ."
The words "by or under any enactment" indicate that section 5 of the Limitation Act is not of general application to all the enactment, but can be made applicable by the provisions of an enactment. This further supports the view that section 29, being a special provision dealing with local and special laws, will override the provisions of section 5 of the Limitation Act. If that is so, the mandate contained in clause (b) of subsection (2) of section 29 of the Limitation Act being in absolute terms, will prevail and the application of section 5 .Of the Limitation Act, shall have to be held as excluded in respect of special and local laws. The Act under consideration being admittedly a special law, the above discussion shows that section 5 of the Limitation Act is not applicable to appeals filed under section 18 of that Act.
6. Agha Taj Muhammad, the learned counsel for the respondents in Writ Petition No. 309/R of 1966, contended that the first part of subsection (2) of section 29 will have to be read independently of the second part, and if they are read separately section 3 of the Limitation Act being applicable to the special and local laws, will make section 5 of the Limitation Act also applicable to the special and local laws. Section 3 reads as follows :- "3. Dismissal of suits, etc., instituted, etc., after period of limitation.-Subject to the provisions contained in sections 4 to 25 (inclusive!, every suit instituted, appeal preferred, application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed although limitation has not been set up as a defence.
Explanation.-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer ; in the case of a pauper, when his application for leave to sue as a pauper is made ; and, in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator."
It is clear that this section primarily deals with the main subject of the bar of limitation. The heading of the section is: "Dismissal of suits, etc., instituted, etc., after period of limitation." In other words, section 3 provides the dismissal of suits, etc. If instituted after the period of limitation. When it is provided in section 3 that it will be subject to sections 4 to 25 of the Limitation Act, what is intended is that the dismissal, after the period of limitation, is a rule; but for the purpose of determining the period of limitation, sections 4 to 25 will have to be applied. Now looking at the two parts of subsection (2) of section 29, it is clear that the first part deals with the question of dismissal, qua bar of limitation, even if the period of limitation provided in special/local laws is different from the one provided in the First Schedule. This provision is parallel to the main subject dealt in section 3 of the Limitation Act. The other subject in section 3, i.e. The determination of period in respect of special and local laws, is provided in its parallel, i.e. The second part of subsection (2) of section 29 ; which reads "and for the purpose of determining any period of limitation . . . . .". In other words, section 3 provides that for the determination of any period of limitation, sections 4 to 25 will apply, while clause (a) of subsection (2) of section 29, dealing with the same subject (determination of period of limitation), provides that only sections 4, 9 to 18 and 22 will apply. Therefore it is clear that while dealing with the reference to section 3 in subsection (2) of section 29, the provisions of that section will have to be read subject to the remaining provisions contained in clauses (a) and (b) of subsection (2) of section 29.
The learned counsel cited Hatim A.I v. Mst. Zulekhabibi and others (PLD 1964 Kar. 399), in order to support his contention that section 5 is applicable to the appeals under discussion. In so far as the question of the application of section 5 of the Limitation Act by virtue of section 3 thereof is concerned, that authority goes against the contention of the learned counsel. However, in that case the provisions of section 5 of the Limitation Act were held to be applicable to appeals filed under the West Pakistan Urban Rent Restriction Ordinance, 1959, in spite of the fact that section 5 was not specifically made applicable to those appeals in that law. The main reason given for that decision is that the period of limitation provided for appeals in that special law was the same as given in the First Schedule to the Limitation Act and further that in that law the hierarchy of subordinate and appellate Courts is almost the same as that mentioned in the First Schedule to the Limitation Act. Therefore, the period of limitation provided in that special law, not being different from the one provided in the First Schedule, section 29(2) was not attracted. Thus the bar contained in clause (b) of subsection (2) of section 29 was not applicable, and in this view of the matter section 5 of the Limitation Act was held to be applicable to the appeals under the West Pakistan Rent Restriction Ordinance. It was also mentioned as a reason for adopting the above view that if there was possibility of there being two views on the question of limitation (qua interpretation of subsection (2) of section 29), the one more favourable to the absence of bar of limitation will have to be adopted. In this case that reasoning is not applicable because the period of limitation provided for appeals under section 18 of the Act is absolutely different from that provided in the First Schedule to the Limitation Act. Moreover, there is no resemblance of the hierarchy of Courts in the Settlement Organisation with any hierarchy of authorities or Courts mentioned in the First Schedule to the Limitation Act. Therefore, we find no justification for applying the reasoning contained in the above-mentioned authority to the present case. It is true that apart from the above-mentioned main reasons given in the said ruling, another alternative reason was also given in paragraph No. 9 of the judgment which reads as follows: "Assuming for the sake of argument that this is not the correct position, even they section 5 of the Limitation Act would be applicable to the appeals filed under the above--mentioned Ordinance. It could at best be argued that it is one of those cases in which no period of limitation is prescribed in the First Schedule of the Limitation Act either directly or by fiction of law with the help of section 29 of the Limitation Act. Then the question will arise whether sections 4 to 25 are independent sections and the words "the period of limitation prescribed" in section 5 of the Limitation Act should be confined to the period of Limitation prescribed under Schedule I to the Limitation Act. The answer to this question depends on the answer of the further question whether section 3 of the Limitation Act governs sections 4 to 25 of the Limitation Actor not. In my judgment section 3 of the Limitation Act stands by itself and sections 4 to 25 of the Limitation Act are not subject to it and should be independently construed."
After discussing some authorities, it is further observed :- "It will be further noticed that section 5 of the Limitation Act is in Part III of the enactment which deals with the computation of period of limitation. Its language is in general terms and there is no limitation or restriction imposed so as to confine it to the period of limitation prescribed by the First Schedule of the Limitation Act. Therefore, the language used in sections 4 to 25 is such that it is open to interpret them in such a manner that they may be given a general application."
The above interpretation does not give due effect to clause (b) of section 29(2). With greatest respect, we do not agree with this reasoning of the application of section 5 of the Limitation Act, we have already analysed the provisions of subsection (2) of section 29 in comparison to section 5 of the Limitation Act and are of the opinion that section 5 is subject to the provisions contained in subsection (2) of section 29. We have found that the second part thereof, specifically clause (b), clearly prohibits the application of section 5 of the Limitation Act to special/local laws. Therefore, we are of the view that the authority cited by the learned counsel essentially decided the question of the application of section 5 of the Limitation Act to the particular provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 ; which did not prescribe different period of limitation from the one mentioned in the First Schedule to the Limitation Act and that authority has no general application. The additional/alternative reasoning for the application of section 5 of the Limitation Act to a special law, with greatest respect, we have not been able to agree to it. Therefore, that authority is of no help to the learned counsel.
7. The -conclusion that we have reached about the interpretation of section 29, subsection (2) of the Limitation Act is supported by the legislative intendment also. The present subsection (2) was enacted in 1922. Before that the parallel provision was clause (b) of subsection (1) of section 29, which was in the following terms :- "(1) Nothing in this Act shall- (a)
(b) affect or alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in British India."
There remained a lot of controversy over the interpretation of this clause uptill 1922, when section 29 was amended and, as stated above, the present subsection (2) was enacted. The Select Com-- mittee gave the following reasons for the change :- "We have carefully considered each section in Parts II and III of the Act for the purpose of deciding whether it should apply to periods of limitation prescribed by special or local laws or not. We think provision should be made that section 4, sections 9 to 18 and section 22 should apply, unless they are expressly excluded by the special or local laws, and that the remaining provisions of the Act should not apply. This will, of course, not preclude amendments of special or local laws with a view to the application of such provisions."-Gazette of India, 1922, Part V, p. 74.
It can be safely assumed from the above quotation that except for the sections enumerated in subsection (2), it was the intention of the Legislature that, the remaining provisions of the Limitation Act were excluded from application to special or local laws. This approach to interpretation of statute by reference to legislative intendment has been approved by the Supreme Court in Badrul Haque Khan v. The Election Tribunal, Dacca and others (PLD 1963 SC 704), in the following words "The applicability of a law as long as we follow the English system of jurisprudence must depend upon the intention of the Legislature. In Maxwell it is stated at the very outset that the `fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent of them that made it' . . . . ."
8. The conclusion we have reached about the application of section 5 of the Limitation Act to appeals filed under section 18 of the Displaced Persons (Land Settlement) Act, has the support of some. Decided cases. In Abdul Jabbar Khan and another v. Additional Settlement Commissioner (Land), West Pakistan and another (PLD 1967 Lah. 25), it was held that a revision petition under section 19 of the Land Settlement Act could not be entertained if it was not filed within sixty days, the period of limitation prescribed in that section: It is, however, noted that there is no discussion in that decision whether or not section 5 of the Limitation Act was applicable to the revision under section 19 of the Act. The tenor of the judgment however, shows that no question relating to the application of section 5 arose nor was it pressed, probably, because it was assumed that the same was not applicable. In an unreported case Settlement Revision No. 3 of 1962 decided on 30th of October 1962, the question arose whether or not section 5 of the Limitation Act was applicable to a revision petition filed in the High Court under section 21 of the same Act, against an order of the Chief Settle--ment Commissioner. A Division Bench of this Court was pleased to pass the following order :- "This petition was filed beyond 60 days of the matting of the impugned order. An application under section 5 of the Limitation ,Act was made to condone the delay but the section is not applicable to a revision petition under section 2t of the Land Settlement Act."
"Even when the Legislature provides a period for the filing of an appeal or an application it is usual to add a clause for the extension of time in appropriate cases. So far as proceedings before Courts are concerned such a provision is contained in section 5 of the Limitation Act and with respect to proceedings before other tribunals either there is a special provision similar to the one contained in section 5 or section 5 is made applicable by a section or a rule. That the fixation of a period should be qualified by a clause for extension can very well be appreciated for in the absence of such a clause there will be apprehension or grave injustice in cases where a person is unable to file a proceeding within the ordinary period on account of fraud, accident or some other cause beyond his control. If with respect to a particular application there does not exist a provision for extension of time Courts generally regard Was a lacuna and a defect in legislation."
9. Before passing on to the next question which arises out of the present reference, it is to be mentioned that the learned counsel cited Muhammad Azeem and others v. Muhammad Nawaz and others (PLD 1961 Lah. 137), to support his contention that section 5 of the Limitation Act was attracted. This also was a case under the West Pakistan Urban Rent Restriction Ordinance, 1959. In this case, it is true that the learned Judge deciding the appeal in the High Court assumed that section 5 of the Limitation Acc applied to the appeals under that law. There is no discussion on the question of the application of section 5 of the Limitation Act to special/local laws. If it is to be construed from that judgment that section 5 of the Limitation Act is applicable to all special and local laws, we, with greatest respect, do not agree with this proposition. It is possible that the fact, that the period of limitation provided for such appeals is the same as provided in the First Schedule to the Limitation Act, may have been the reason for applying section 5 of the Limitation Act to the appeals provided under that law. While considering Hatim A.I v. Mst. Zulekhabibi and others we have already indicated that this question does not arise in this case. However, it is to be noticed that in Lala Krishan Lall Malhotra and 2 other, v. Sheikh Muhammad Sadiq (PLD 1955 Lah. 288), it was held that Punjab Urban Rent Restriction Act, 1947 being a special as well as local law, the provisions of section 29 of the Limitation Act were attracted and the general provisions of the Limitation Act, except in so far as they were made applicable by section 29(2) (first part), were not applicable. In the present reference, this question does not arise. Therefore, we refrain from going any further into the question whether or not section 5 of the limitation Act will be applicable to a special/local law if the period of limitation provided in that law is the same as that in the First Schedule to the Limitation Act.
The learned counsel then cited Tahir A.I and others v. Chief Judge, Karachi Small Causes Court and another (PLD 1963 SC 147). This was a case under the Karachi Rent Restriction Act .Of 1953. The question involved was whether or not an application for revision to the Chief Judge, Small Causes Court, Karachi, against the Controller's order could be treated as an appeal, for the purpose of excluding the days in obtaining the copies of the order ; as provided in section 12 of the Limitation Act. It was held that an application by way of revision under the Karachi Rent Restriction Act had all the characteristics of an appeal. It was also held that the word "appeal" occurring in section 12 of.
The Limitation Act should be construed in a broad sense, so as to include a revision under the Karachi Rent Restriction Act. On this reasoning, it was held that section 12 of the Limitation Act applied to such revisions. This ruling of their Lordships of the Supreme Court does not help the contention raised by the learned counsel. Their Lordships in their judgment noted the provisions of clause (a) of subsection (2) of section 29, which provide that sections 4, 9 to 18 and 22 of the Limitation Act shall apply in determining the period of limitation prescribed in special/local laws.
What their Lordships held was that section 12 of the Limitation Act, by virtue of the interpretation of the word "appeal", given by them was applicable to such an appeal. In other words, effect was given to clause (a) of subsection (2) of section 29 which provides that section 12 of the Limitation Act applied to the special or local laws. Thus, that does not lay down that section 5 of the Limitation Act, which falls under clause (b) of subsection (2) of section 29, was also applicable to that Act.
Therefore it is not an authority in support of the contention of the learned counsel.
We have noticed another case, namely, Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and Khairpur Divisions and others (PLD 19621 Kar. 285), where section 5 of the Limitation Act was held to be applicable to an appeal against the cancellation of allotment made under the Rehabilitation Act of 1956. It was specifically noted at page 287 of the report that by virtue of rule 10 of the Pakistan Rehabilitation Rules, 1951, section 5 of the Limitation Act applied to the case. There is no discussion of the question whether or not section 5 of the Limitation Act applied to the appeals under the Displaced Persons (Land Settlement) Act. Therefore, we presume that the said ruling is applicable only to the appeals preferred under the Rehabilitation Act, 1951, and not to the appeals under section 18 of the Displaced Persons (Land Settlement) Act. The provisions of the Displaced Persons (Land Settlement) Act are also mentioned in that decision.
However, we make it clear that, if it is argued that the circumstances in that case, by reference to some proceedings in 1960 (after the passing of the Displaced Persons (Land Settlement) Act on 23rd September 1958), made it a case under the Displaced Persons (Land Settlement) Act, and by implication that ruling supports the application of section 5 of the Limitation Act to appeals under the Displaced Persons (Land Settlement) Act ; then for the reasons given in the above discussion, we respectfully differ, because in our judgment section 5 is not applicable to the appeals under the latter Act.
At one stage, during the arguments, it was suggested by the learned counsel that all allotments, even if being made after coming into force of the Displaced Persons (Land Settlement) Act (23rd September 1958), are made in pursuance of West Pakistan Rehabilitation Settlement Scheme which was prepared and continued under various Rehabilitation laws as distinguished from the Displaced Persons (Land Settlement) Act. In this view of the matter, according to him, section 5 of the Limitation Act will be applicable, by reference to the Pakistan Rehabilitation Act, 1956 (XLII of 1956) and rules made thereunder. We do not agree with the proposition that all allotments made after the coming into force of the Displaced Persons (Land Settlement) Act, are made only under the Scheme framed and continued, by reference to the Rehabilitation laws. No doubt, under clause
(7) of section 2 of the Displaced Persons (Land Settlement) Act, "Scheme" has been defined as "a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) or section 7 of the Baluchistan (Rehabilitation) Regulation, 1950 (II of 1950)", but this definition of "Scheme" is subject to the opening words of section 2 which are : "In this Act, unless there is anything repugnant in the subject or context." After acquisition of land under section 4 of the Act, it became a part of the Compensation Pool constituted under section 5 thereof. The acquisition being for the purposes of the Act, the land was subject to allotment to displaced persons against their verified claims, under section 14 of the Act. A scheme has been prepared under section 14 ; which has adopted, almost, entire West Pakistan Rehabilitation Settlement Scheme prepared under the Rehabilitation laws, for the purposes of allotments under the Displaced Persons (Land Settlement) Act. The application of the Rehabilitation Scheme, of course, was inutatis mutandi. The allotment made under a scheme prepared under section 14 of the Act has also been mentioned in section 15 thereof. Moreover, the word "allotment" as used in the Act, has been defined in clause (1) of section 2 which reads as follows :- " allotment means an allotment of agricultural land made to a displaced persons under this Act or under any scheme, in lieu of any claim registered and verified, or deemed to have been registered and verified, under any of the following enactment, namely :-
10. While analysing the subject under reference, we posed some other questions which rightly fall for determination in such cases. They are enumerated in paragraph No. 3 of this judgment. Those questions arise, because we have to see, with reference to the facts of the cases before us and the question referred, that if section 5 of the Limitation Act is not applicable to the appeals under the Displaced Persons (Land Settlement) Act, whether or not the appellate Authority has any power to entertain an appeal which, on the face of it, appears to be time-barred. Our answer to this subsidiary question is that in some circumstances in spite of the fact that prima facie the appeal would appeal to be time-barred, the appellate Authority can entertain and decide it on merits. One such situation can arise, when the orders under appeal is a nullity. In a case from West Africa reported as Chief Kwame Asante v. Chief Kwame Tawia (PLD 1949PC45), their Lordships of the Judicial Committee were pleased to hold that when "it appears to an appellate Court that an order against which an appeal is brought has been made without jurisdiction, it can never be too late to admit and give effect to the plea that the order is a nullity." The occasion for making this very weighty observation arose in the following circumstances, and for convenience sake those circumstances are quoted from the text of the judgment at page 46 of the report :- "When this case reaches the West African Court of Appeal it was for the first time suggested and made a ground of appeal that the trial Court, Court B, was not validly constituted for the rehearing of the case in that certain chiefs had sat as Judges in that Court who were not qualified to sit, and that the proceedings before that Court must accordingly be regarded as "coram non judice" and its judgment as a nullity. Upon this the West African Court of Appeal observed that this additional ground of appeal was filed without the necessary leave of the Court, and that it was too late in the proceedings to raise a point of this nature which was not railed in any of the three Courts below or at the beginning of the hearing of the appeal in that Court."
Similar observation was made in The Punjab Province v. The Federation of Pakistan (P L D1956 FC 72). In a suit instituted in the Federal Court by the Province of Punjab against the Federation of Pakistan under section 204 of the Government of India Act, 1935, for a declaration that the plaintiff- province was not liable to be assessed to income-tax, an objection was raised that it was barred by time. While dealing with this objection, their Lordships of the Federal Court noted that one of the reliefs claimed in the suit sought a declaration that the plaintiff was not to be taxed under the Income-tax Act or the Excess Profits Tax Act. They granted the decree that the province was not liable to income-tax or excess profits tax in respect of the profits which were under dispute. In the light of the above circumstances, it was held :- "As regards the objection that the suit is barred by time, all that is necessary to say is that the assessm ent being void and the tax not having been paid no question of limitation arises."
There are many other decisions and we find sufficient authority in support of the proposition that an act or an order which is a nullity, has simply to be ignored and proceedings need not be initiated to get it annulled. In case, however, the order or action which is a nullity is to be enforced against the person affected by it, that person at that time will be entitled to challenge the same on the basis of it being a nullity. In such circumstances, the cause of action, in so far as that person is concerned, will arise only, when the attempt is made to enforce such an action or, order against him, and therefore there will be no question of limitation involved, in the sense that, the date of order, which is a nullity, for the purpose of start of limitation, will become insignificant. Some such cases arose out of the interpretation, of Article 14 of First Schedule to the Limitation Act which provides the limitation of one year from the date of an act or an order of an officer of Government in his official capacity, for the purpose of setting it aside. Except in very few decisions based on peculiar circumstances of individual cases. The consensus of authority is that if an act or an order of an officer of Government was without jurisdiction or a nullity for any other reason, Article 14 had no application to it. Such an order does not require to be set aside. A more recent ruling of general importance and application is contained in Muhammad Swaleh's case (PLD 1964 SC 97). It will suffice to reproduce the observation of their Lordships at page 101 of the report :- "The difference between a total lack of jurisdiction and an irregularity is sometimes one of degrees and is a matter of difficulty. A reference to the provisions of section 115 of the Civil Procedure Code would show that every irregularity or even illegality in the exercise of jurisdiction does not render the order void and without jurisdiction. By merely showing therefore that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provision or principle of natural justice as would render the proceedings coram non judice.
The contention on behalf of the appellant is that the passing of a final order without notice to the party against whom the order is passed is an act without jurisdiction for jurisdiction over a party is acquired only if the party has notice. The argument on the other hand is that when a Court is seized of a case it has jurisdiction to determine whether summons has been duly served and this will include a case where the Court finds though not quite correctly that there is sufficient legal notice to the defendant.
It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it."
It emerges from the above discussion as a corollary and conclusion that in a case where section 5 of the Limitation Act is not applicable, the power of the appellate Authority t to decide the case on merits will not be hinged by any considera--petition of limitation, if the order appealed against is found to be a nullity.
11. It is not within the scope of this judgment, on the reference in question, to admit an exhaustive list of situations, acts or orders which can be treated to be nullity.
The principle, that whenever an act or an order is tainted with fraud, of course, in such a way that the fraud substantially affects the rights of a party bearing on the question of limitation, has been embodied in section 18 of the Limitation Act. That section provides that where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time for instituting the suit or making the application under certain conditions shall be computed from the time when the fraud first` became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production. This provision has been made applicable to proceeding under special and local laws, by virtue of clause (a) of subsection (2) of section 29. Whenever such conditions, as mentioned above, are found to exist, the party who is the victim of fraud cannot be penalised by ordinary bar of limitation. Therefore, in an appeal under section 18 of the Displaced Persons (Land Settlement) Act, the appellant is entitled to press into service the provisions of section 18 of the Limitation Act, against an objection about, the bar of limitation.
12. The next subsidiary question which arises for determina--petition is whether a person, aggrieved against an order, can take benefit for the purpose of appeal, of the fact that he had no notice of that order. The principle of natural justice, namely, audi alteram partem has, by now, been firmly established by the force of precedent in judicial system of Pakistan. There are innumerable pronouncements by the superior Courts, particularly by the Supreme Court, laying it down as a rule that nobody can be made to suffer any harm to his rights including those relating to property, person and reputation, without giving him sufficient opportunity of showing cause. The approach of Courts, in application of this principle to individual cases, has been pragmatic. No technical consideration is allowed to bar the application of the above-mentioned principle. Barring a few h exceptions, e.g. Exercise of purely police power in preventive measures, this principle applies to all situations. Ordinarily therefore, when a statute does not expressly bar the application of this principle, the Courts shall presume that its. Application is included in the provisions of that statute.
It is a necessary corrollary of the acceptance of this principle that the procedural laws will have to be interpreted in such a way as to avoid conflict with this principle. This being a basic reality, all consideration, incidentally and consequentially related to the above principle, will have to be brought into operation, in order to see that the said principle is fully satisfied. Therefore, if in a given case, a person is able to establish that he had the right of hearing ; and in spite of that the order was passed or action was taken against him without his knowledge, he will be entitled to plead, while filing an appeal which, prima facie, is time-barred, that the time will start running against him only from the date of his knowledge about the order.
It is true that the precedent law on the question of start of limitation from the date of knowledge is not consistent ; yet there is ample authority for the proposition that, if the time starts running from the date of order or action, it should be presumed that the time will run from the date of the knowledge of the order or action, if it was made or taken in absence of -the party. In Ghulam Muhammad and others v. Hafiz Ahmad and others (PLD 1960 Lah. 1179), it was held that "it cannot be expected that a person should come to Court to get relief against an order, of the existence of which he had no knowledge". It was also observed in this judgment that "if a public officer has passed an order which he has no jurisdiction to pass, the order can be overlooked. "In Thakurain Harnath Kuar v. Thakur Indar Bahadur Singh (AIR 1922 P C 403), their Lordships of the Judicial Committee were pleased to observe that the true nature of certain rights was not discovered by the plaintiff earlier than the time at which his demand for possession was resisted; therefore, the matter could not be barred by limitation. In other words, effect was given to the principle that a person cannot be expected to contest an order which is not within his knowledge. Similarly, in Muhammad Zaman and another v. Hans Raj Shah and others (AIR 1938 Lah. 707), it was found that "where a Court delivers a judgment without having previously fixed a date for pronouncing the judgment, and the defendant being absent on that date, the judgment is informed to his counsel on some later day, this later day must be regarded as the date for pronouncing judgment and period of limitation for appeal must be deemed to run from that date and not from the date on which the judgment is actually pronounced. "Kharak Singh v. Laccham Singh (AIR 1925 All. 293)", was relied in reaching the above-mentioned conclusion. In that case the judgment was signed, dated and delivered in the absence of the parties or their pleaders and without previous notice to them and the plaintiff was ordered to deposit the pre-emption money within three months of the date of the delivery of the said judgment. It was held that the judgment was not validly pronounced within the meaning of rules 1 and 3 of Order XX, Civil Procedure Code, and that as regards the payment of the pre-emption price, time began to run against the plaintiff as from that date when he was informed of the judgment. There are many other decided cases on this point, but it is not necessary to refer to them. As observed earlier, one very important principle of natural justice, which has been consistently applied in Pakistan, is audi alteram partem. The rule laid down in the above-noted and other cases is consistent with this principle.
There is another important aspect of the same question. We have already noted the very weighty observations of their Lordships of the Supreme Court in Muhammad Swaleh's case. The principle, that the passing of a final order without notice to the party against whom the order is passed is an act without jurisdiction, can be clearly deduced from that ruling. A necessary consequence flowing from the assumption would be that such an order is void. The fact that the latter conclusion can be drawn, is supported by the observations of their Lordships of the Supreme Court in Commissioner of Income-tax, East Pakistan v. Fazlur Rohman (PLD 1964 SC 410), where, after referring to the case of Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45), it was held that the opportunity of hearing being essential, the order, as a result of proceedings without such hearing, was void. Keeping in view these observations it can be safely assumed that the proceedings without giving an opportunity of hearing are coram non judice and the order passed as a result thereof is a nullity.
And if the party affected by such an order had no knowledge of the same, the plea in limitation that, it starts from the date of the order, cannot be pressed against such an affected party. That- party would be clearly entitled to challenge the order within the prescribed time, counting the period from the date of his knowledge.
There is yet another aspect of this matter. Under section 18 of the Displaced Persons (Land Settlement) Act, any person aggrieved by an order under that act may prefer an appeal to the designated authority within 60 days of the order appealed against. It is to be noted that unless a person has the knowledge of the order against which he wants to file an appeal, he cannot be considered to have been aggrieved by it ; because a grievance cannot develop without a simultaneous subjective realisation of the injury causing that grievance. It will have to be assumed that when the Legislature used the phrase "aggrieved by an order", it meant the grievance about the order which has come to the knowledge of the party. If we were to hold otherwise, the right of appeal under section 18 would, in some cases, become illusory. In this view of the matter as well, the date of the knowledge of the order passed is the starting point for an aggrieved person to file an appeal within the prescribed time.
13. The next question for determination is whether the revisional authority has any power to decide a case on merits, despite the fact the appeal before the lower forum was barred by limitation. In the present- reference, this question has to be considered in the light of the provisions, relating to revision, in the Displaced Persons (Land Settlement) Act. Section 19 of the Act provides that a revision is competent against the order of an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner for determining the correctness, legality or propriety of such an order, and the revising authority may pass such order in relation thereto as it thinks fit. It is clear from the reading of the section that when the revision is filed before a Settlement Commissioner, it is not only the order of the Additional Settlement Commissioner alone which can be challenged, but also of the Deputy Settlement Commissioner or the Assistant Settlement Commissioner. The Settlement Commissioner can look into the correctness, legality or propriety of any of the orders passed by any of the above--mentioned officers. The power to correct the orders of the subordinate authorities is not confined to the last order passed by the Additional Settlement Commissioner alone. The correctness, legality or propriety of any of the orders passed by the lower authorities can also be gone into. It is a very wide power, and is not limited by the consideration that the appeal from the order of Assistant Settlement Commissioner before the Deputy Settlement Commissioner or from the order of the Deputy Settlement Commissioner before the Additional Settlement Commissioner must have been f4ed within limitation. This interpretation might not appear to be consistent with the view taken by' their Lordships of the Supreme Court in Azmat A.I's case, (PLD 1964 SC 260). But on careful reading of that ruling, it transpires that their Lordships did not hold that if the appeal is time-barred, the revisional authority cannot give relief to the person who failed before the appellate authority due to that reason. The revisional authority in that case dealt with the revision on merits "without considering as to whether the order dismissing the appeal on the ground that it was barred by limitation was proper or not". It does not, at all, appear from the judgment of their Lordships that if the appeal is dismissed as time-barred, the revision must necessarily be also dismissed. This very question was specifically considered and decided by their Lordships in the case of Muhammad Swaleh, already referred in this judgment in another connection. While dealing with the powers of the High Court in revision, their Lordships observed :- "The learned Single Judge had power when exercising his jurisdiction under section 115, C. P. C. To set aside the order directing ex parte proceedings and the ex parte decree based on that order, for they were the result of illegal or materially irregular exercise of jurisdiction. Even if it were found that the order of the trial Court recalling the ex parte decree could not be sustained because the application for setting aside the decree lay only under Order XIII, rule 9, C. P. C. And was time- barred the learned Judge could and under the circumstances should have set aside the illegal order directing ex parte proceedings."
This subject was again dealt with by their Lordships of the Supreme Court in another context, in Pir Muhammad Farid Jan v. Colonisation Officer and others (PLD 1965 SC 399). With reference to the appeal, etc. And revisional jurisdiction under the Land Revenue Law, it was observed : - "An appeal is the creature of a statute and must be confined within the limits imposed by the relevant statute. Under section 203 of the Act, an appeal from an order passed by a "Revenue- Officer" under the Act, would lie to his immediate superior but the Revenue Officer who heard it was clearly not in that position above the Assistant Revenue Officer since both of them were invested with powers of a Collector. The order of the Revenue Officer being itself a nullity, it was inapt to make it the subject of an appeal, without canvassing the point of jurisdiction of the officer hearing the first appeal.
This, however, does not conclude the matter. Even if the two appellate orders suffered from an infirmity, the order passed in revision by the learned Member, Board of Revenue, was not open to any such exception on the legal plane. By section 211 of the Act, the Board of Revenue possesses power to revise an order passed by any subordinate officer and questions of legality as well as propriety of such a decision would be open in revision before the Board. The order of the Board was passed after full hearing of both parties on - the merits of the case. Even if therefore the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 of the Act, could not be successfully assailed as illegal."
The interpretation of section 19 of the Displaced Persons (Land Settlement) Act would become, all the more, easy, if the above observations of their Lordships of the Supreme Court are kept in mind.
The revisional authority is empowered to pass any order, it thinks fit, in relation to the order passed by the subordinate authorities. Therefore, in a proper case, if the revisional authority grants relief to an aggrieved party whose appeal before the lower forum was dismissed as time-barred, it will not be an exercise of jurisdiction not vested in that authority. The only limiting condition deducible from the judgment of the Supreme Court in Azmat A.I's case is that the revisional authority should have noticed the fact that the appeal was time-barred. In fact, this duty is clearly discernible from the use of the words "correctness, legality or propriety" in the relevant provision of law. But once it is found that the revisional authority was conscious of the fact of an appeal having been dismissed as time--barred, there remains no limitation on its power to pass any order it deems fit ; keeping in view, of course, the correctness, legality and propriety of the order impugned before that authority.
The other limitations, of course, will be that the revising authority will have to act according to the provisions contained in the relevant statute relating to the exercise of the revisional power. In fact, it is the duty of the revisional authority to consider the correctness, legality or propriety of the impugned order, in spite of the fact that the appeal was dismissed by the appellate authority as being time-barred. This determination of the scope of revisional jurisdiction is consistent with the observations of their Lordships of the Supreme Court made in the case of Muhammad Swaleh, and also in the case of Ch. Altaf Hussain (PLD1965 SC 68). It was held in the latter case that ignoring of illegal character of impugned order, or disregarding party's plea concerning vested right in the exercise of revisional jurisdiction, amounts to failure to exercise that jurisdiction which, in proper cases, may vitiate the revisional order. In view of the above discussion, we have come to the conclusion that if the appellate authority dismisses the appeal as being time-barred, it is open to the Settlement Commissioner exercising powers n under section 19 of the Displaced Persons (Land Settlement) Act, to grant the relief to the aggrieved party, despite the fact that the appeal of that party was dismissed by the appellate authority as time-barred.
14. In the light of the above discussion and subject to our observations ; about the orders which are tainted with fraud ; or are passed without knowledge to the affected party ; or are otherwise nullity and about the powers of the revisional authorities, we hold that the provisions of section 5 of the Limitation Act are not applicable to appeal filed under section 18 of the Displaced Persons (Land Settlement) Act of 1958. Before concluding this judgment, it is necessary to mention that we have answered the reference, keeping in view the provisions of the said Act and the facts of the four cases placed before us.
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