M. TABASSUM AFTAB ALVI, C.J.---The captioned writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, following prayer is made by petitioner:-- "It is, therefore, very humbly prayed that by accepting the writ petition order of Assistant Collector dated 09.03.2000, whereby the mutation No,35 has been sanctioned and order of settlement Commissioner dated 26.06.1999, the order of Member of Board of Revenue dated 06.08.2007, as well as the order of Board of Revenue dated 28.01.2008, may kindly be set-aside. It is further prayed the order of Assistant Collector dated 16.02.1998, whereby mutation No,23 was sanctioned may kindly be ordered to be restored. Any other relief, which the Hon'ble High Court deems fit and proper, may also kindly be granted to petitioner in the interest of justice."
2. Precise facts culminating into filing of the instant writ petition are that petitioner is first Class State Subject and hails from District Muzaffarabad. It is alleged that Amirullah son of Abdullah, resident of Village Ghatian, was shareholder of land in the same Village bearing Khewat No,56 who died in year 1970, and left two daughters. His share was sanctioned vide mutation No,23 in favour of his daughters namely Mst. Qasim Noor plus Sahib Noor, as well as, in name of petitioner and his sister. It is averred that 'after the death of Mst. Qasim Noor and Sahib Noor, respondent No,5 (wrongly stated as respondent No,1), who was husband of Mst. Qasim Noor, filed a revision petition against mutation No, 23 dated 16.02.1998, before the Settlement Commissioner on 19.04.1998. It is maintained that Settlement Conimissioner without summoning petitioner accepted the revision petition vide order dated 26.06.1999 and set-aside the order of Assistant Collector dated 16.02.1998, by cancelling mutation No,23, however, remanded case to the concerned Revenue Officer with the direction that fresh mutation may be sanctioned in names of two daughters of the deceased Amirullah only and in compliance of the aforesaid direction another mutation No,35 was sanctioned on 09.03.2000. Being aggrieved from the aforesaid order, petitioner filed an appeal before Member Board of Revenue, which was treated as revision petition, along with an application for condonation of delay, however, the same was dismissed vide order dated 06.08.2007. The petitioner filed another revision petition against the aforesaid order dated 06.08.2007, before the full Board of Revenue, which was also dismissed vide the impugned order dated 28.01.2008, hence, the instant constitution petition.
3. The writ petition has been resisted by respondents Nos,5 to 9 through written statement, wherein, it is stated that petitioner has got no locus standi to file the instant writ petition. It is pleaded that petitioner has not pointed out any illegality or irregularity which might have been committed by the Revenue Courts, hence, writ petition is bad in law. It is claimed that petitioner has no concern with Amirullah, and mutation No,35 had rightly been sanctioned in favour of daughters of the deceased. It is submitted that petitioner challenged the order dated 26.06.1999, passed by the learned Settlement Commissioner, after a period of more than 05 years, hence, defended the impugned order. The other contents of writ petition have also been refuted.
4. Mr. Muzaffar Hussain Mughal, the learned counsel for petitioner strenuously argued that mutation No,23 was duly attested on 06.02.1998, by the competent Revenue Officer in presence of petitioner and others legal heirs of Amirullah son of Abdullah, however, against the aforesaid order a revision petition was unlawfully filed before Settlement Commissioner by private respondent No,5, in which petitioner although was party, however, he was not summoned. The learned counsel argued that at the time of attestation of mutation No,35 dated 09.03.2000, petitioner was not present and the same was attested against settled principle of audi-alteram-partem, hence, submitted that by setting aside the orders passed by Board of Revenue, as well as Commissioner Settlement, basic mutation No,23 dated 16.02.1998, be restored and mutation No,35 dated 09.03.2000, may be abrogated. The learned counsel in support of his contentions referred to and relied upon the following case law:-- i. Muhammad Abdul Rehman Abbasi v. Azad Government and 7 others [2015 SCR 1083] ii. AJ&K Govt. and 4 others v. Dr. Muhammad Amin [2014 SCR 258]. iii. Chairman Development Authority, Muzaffarabad and another v. Sajjad Ahmed Sheikh and 2 others 2004 PLC (CS) 1095.
5. Mr. Muhammad Hanif Minhas, the learned counsel appearing on behalf of contesting respondents, however, defended the impugned orders with full force and contended that against order dated 26.06.1999, passed by Commissioner Settlement, petitioner filed a Civil Suit No,249/2004, titled "Abdullah v. Abdul Majeed and others" before Civil Judge, Muzaffarabad, which was dismissed vide order dated 19.11.2004, against which no appeal was filed, hence, same attained finality under law. He further contended that against the order dated 26.06.1999, passed by Settlement Commissioner, a revision petition was filed before Member Board of Revenue, on 10.01.2005, which was correctly dismissed as hopelessly barred by limitation through order dated 06.08.2007. The learned counsel pressed into service that against the aforesaid order another revision petition was filed before full Board of Revenue, which was also dismissed vide the impugned order dated 28.01.2008, being hit by subsection (2) of section 7 of the Azad Jammu and Kashmir Board of Revenue Act, 1993. The learned counsel emphasized that the revision petition filed by petitioner before the learned Member Board of Revenue, was barred by time, even from the date of knowledge on which the suit was filed before the Civil Court. He contended that a party cannot be granted extension in limitation due to choosing wrong forum, hence, submitted for dismissal of writ petition. The learned counsel in support of his contentions, referred to and relied upon the following case law:-- i) Mirza Lal Hussain v. Custodian of Evacuee Property and others [1992 SCR 214]. ii). Masud Ahmad and others v. United Bank Limited, [1992 SCR 98]; iii).Rehmdil Khan and 2 others v. Ali Safdar Khan and 2 others, 1998 MLD 416.
6. I have perused the contents of writ petition, examined the appended documents made available with utmost care and have given my earnest thought to the points raised by the learned counsel for parties.
7. The claim of petitioner is that being legal heirs of late Amirullah, mutation No,23 was attested in name of two daughters of the aforesaid deceased namely Mst. Qasim Noor and Sahib Noor, as well as, in name of petitioner and his sister on 16.02.1998. However, after death of daughters of Amirullah, husband of Mst. Qasim Noor, i,e, private respondent No,5, secretly filed a revision petition before Commissioner Settlement, Muzaffarabad, which was accepted through order dated 26.06.1999, on the basis of which mutation No,23 was cancelled and mutation No,35 was attested on 09.03.2000.
The petitioner challenged vires of order dated 26.06.1999, by preferring an appeal, which was treated as revision petition, before Member Board of Revenue on 10.01.2005. The same was barred by more than 05 years and 03 months. The petitioner was party in Revision Petition No,08/98, titled "Abdul Majeed v. Abdullah and others" filed before Settlement Commissioner decided on 26.06.1999. The presumption is that after summoning and hearing the aforesaid revision petition was accepted by Settlement Commissioner. However, petitioner after elapsing more than 04 years period, instead of filing appeal before Board or Revenue, filed suit which was dismissed by the learned Civil Judge, Muzaffarabad, on 19.11.2004. After dismissal of suit, petitioner challenged order dated 26.06.1999, before the learned Member Board of Revenue, on 10.01.2005, which was dismissed through order dated 06.08.2007. The petitioner failed to explain each day inordinate delay before the Board of Revenue, consisting of about 05 years and 03 months. It appears from record that parties remained under litigation for pretty long time. The petitioner and private respondents are close relatives and residing in the same locality, therefore, it cannot be imagined that petitioner remained unaware about order of the Settlement Commissioner, Muzaffarabad, dated 26.06.1999, on the basis of which, mutation No,35 was attested on 09.03.2000. As per subsection (3) of Section 7 of Board of Revenue Act, 1993, ninety days period was postulated for filing revision petition.
Therefore, as per my humble view, the learned Member Board of Revenue rightly dismissed the revision petition on the ground of limitation.
8. The petitioner also choses wrong forum and after dismissal of suit filed revision petition before the Member Board of Revenue. It is settled principle of law that if a litigant spent time in pursuing a remedy under a mistaken advice, the period spent by him goes waste and no consideration can be shown in such a situation. The aforesaid point came under consideration before the Apex Court in case titled "Mirza Lal Hussain v. Custodian of Evacuee Property and others" [1992 SCR 214].
At page 220 of the report it was opined as under:-- "10. Even the legal aspect of the contention of Mirza Lal Hussain has no validity. The benefit of the period spent by a litigant in pursuing a remedy in a wrong forum can only extended to one who chooses the forum with due care and caution. He has to show that he was misled by some practice of the court or an erroneous judgment. If a litigant spends time in pursuing a remedy under a mistaken advice the period spent by him goes waste and no consideration can be shown in such a situation."
The similar view was expressed by the Apex Court in case titled "Masud Ahmad and others v. United Bank Limited" [1992 SCR 98], wherein, at page 102 of the report, it was held as under:-- "This takes us to the question whether the appellants can successfully urge that the appeal filed in the Court of District Judge had been filed and prosecuted with good faith. If the appellant's contention is shown to be well founded, it would furnish a "sufficient cause" for condonation of delay. Notwithstanding the fact that both the learned counsel who appeared in this appeal were not aware of it, this proposition stands concluded by judgments of this Court that circumstances as appearing in the present case 'cannot be termed as being the result of "good faith" rather in fact they constitute "gross negligence" and cannot be treated as a sufficient cause for condonation of delay. Where the provision of law is clear question of condonation does not arise. It may arise when a litigant is misguided by some practice of a Court or by an erroneous judgment."
The same view was reiterated by the Apex Court in case titled "Rehmdil Khan and 2 others v. Ali Safdar Khan and 2 others 1998 MLD 416. In para-2 of the precedent case, it was observed as under:-- "2. As the petition for leave to appeal is time-barred by thirty days, it is not necessary to go into merits of the case. The petitioners have filed an application for the condonation of delay on the ground that they were informed by their counsel that the period of limitation prescribed for filing a petition for leave to appeal to the Supreme Court is ninety days and thus, the delay in filing the petition was caused due to the wrong advice of their counsel. Raja Ibrar Hussain, Advocate, the learned counsel for the petitioners, has argued that the matter pertaining to the condonation of delay should be liberally construed. He has further contended that in the instant case, the petitioners cannot be made to suffer for the fault of the wrong advice given to them by their counsel. He has cited a case reported as Rehmat Bibi v. Ghazanfar Hussain [PLD 1983 SC (AJ&K)
25], wherein, the delay was condoned holding that as the copy of the decree-sheet was not supplied to the party concerned, despite the fact that it had applied for the same, they were entitled to the condonation of delay of the period falling between the preparation of the decree- sheet and its signing. This authority has no relevancy to the present case. It may be stated that in the instant case there is no affidavit on behalf of the counsel for the petitioners, that he had given alleged advice to the petitioners. However, even if it is assumed that any such wrong advice was given, that is not a sufficient cause for condoning the delay, because a bona fide mistake may constitute a sufficient cause for the condonation of delay but wrong advice given by a counsel negligently does not. If the law on the point of limitation can be ascertained by resorting to relevant statute but the counsel gives a wrong , advice due to his negligence, the delay cannot be excused; the party can claim compensation from his counsel."
9. It also reflects from record that against order dated 06.08.2007, passed on appeal of petitioner treated as revision petition by Member Board of Revenue another revision petition was filed by him before full Board of Revenue, which was dismissed, vide the impugned order dated 28.01.2008.
According to my considered view, the aforesaid revision petition was not maintainable as per subsections (I) and (2) of section 7 of the Azad Jammu and Kashmir Board of Revenue Act, 1993, which speaks as under:-- "7. Revision of orders by Board.---(1) Any order made or a decree passed by a Member either on appeal or in revision shall, subject to any order made or decree passed under the provisions of subsections (21 and (3) of this section and of section 8 shall be final.
(2)Any person aggrieved by an order made or a decree passed by a Member, in such class of cases as may be specified in the rules framed under section 9 of this Act, may, apply to the Board for revision of such order or decree, and if the full Board considers that there are sufficient reasons for doing so, it may revise that order or decree and pass such further order as it may think fit after hearing the applicant: Provided that no revision shall lie to the full Board against an order made or a decree passed by a Member in exercise of the revisional jurisdiction.
Explanation.- For the purposes of this section the full Board shall mean two or more members, as may be prescribed by rules.
(3)
A bare reading of the aforesaid sub-sections, makes it abundantly clear that any person aggrieved by an order made or a decree passed by a Member, may apply to the Full Board for revision of such order or decree, and if the Full Board considers that there are sufficient reasons then order decree can be revised. However, in the instant case, another revision was not competent, hence, the same was rightly dismissed by the Full Board.
10. Even otherwise, I have not found any illegality or irregularity which might have been committed by the learned Board of Revenue dismissing the revision petition of petitioner.
11.The authorities referred to and relied upon by the learned counsel for petitioner are distinguishable, hence, need not to be discussed.
12.The crux of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed. The costs shall follow the eventuality.