' This is a constitutional petition filed by Ahmad Khan and others, petitioners, calling in question the order of the Collector/A. D. C. (Rev.), Rawalpindi, dated 30th November, 1981 dismissing their suit for pre-emption for not having made up the deficiency in court-fee within the period of limitation and against the orders of the Additional Commissioner (Rev.), Rawalpindi, dated 29th March, 1982 and that of the Member (Rev.), Board of Revenue, dated 27th April, 1982, dismissing their appeal and revision, respectively.
' The brief facts of the case are that Ahmad Khan and others, petitioners Nos. 1 to 3, filed a suit in the civil Court for possession of agricultural land through pre-emption against Feroze Khan (now represented by Mst. Feroze Begum and two others, respondents Nos. 1 to 3), Syed Sartaj and Fateh Khan, respondents Nos. 4 and 5. The valuation of the suit for the purposes of the court-fee at 15 times the net profits was stated to be Rs, 500, on which actual court-fee of Rs, 37.50 was affixed on the plaint. On 15th September, 1976, the suit was transferred to the Collector/A. D. C. (Rev.), Rawalpindi. On 28th December, 1976, the respondents filed their written statement objecting to the court-fee valuation and stating that the suit was barred by limitation. On 3rd March, 1980, the issues were framed in the suit, including the following :- ' Issue No 1. : Whether the suit is barred by limitation ? 0. P. D.
' Issue No, 4 : Whether the suit was not properly valued for the purposes of court-fee and jurisdiction and if so what is proper court-fee payable ? 0. P. D.
' The suit thereafter was set down for the evidence of the petitioners/ plaintiffs for 27th March, 1980.
After some adjournments, on 22nd December, 1980 counsel for the respondents/defendants made a statement in Court that there was no Naqsha Jhar Paidawar, wereupon the Court adjourned the case so that petitioners/plaintiffs could file the said document and also produce their evidence on 12th January, 1981. On 12th January, 1981, 4th February, 1981, 25th February, 1981, 24th March, 1981, 15th April, 1981 and 2nd May, 1981, the case was adjourned as Naqsha Jhar Paidawar had not been filed by the petitioners/plaintiffs. On 20th May. 1981, the said Naqsha Jhar Paidawar was filed and the case was adjourned to 10th June, 1981, 20th June, 1981 and 6th July, 1981 for filing of the amended plaint. On 29th July, 1981, the presence of the parties and the filing of the amended plaint by the petitioners/plaintiffs was recorded and the case was adjourned to 19th August, 1981 for the respondents/defendants written statement and payment of the deficient court-fees by the petitioners/ plaintiffs. On 19th August, 1981, the Presiding Officer was on leave and the case was adjourned to 26th August, 1981. On the said date, court-fees stamp papers of Rs, 375 representing the deficient court-fee, was filed in Court by the petitioners/plaintiffs and the case was adjourned to 16th September, 1981 for evidence. The case then stood adjourned to 28th September, 1981, when, an objection having been raised by the learned counsel for the respondents/defendants that the petitioners/plaintiffs had filed Naqsha Jhar Paidawar after great delay and had made good court- fees after the limitation, the case was set down for arguments on the question whether the suit had been properly valued for the purposes of court-fees and whether deficient court-fees filed could have been so received. On 30th November, 1981, arguments were heard by the Collector/A. D. C.
(Rev.), Rawalpindi, who, reviewing his earlier order dated 26th August, 1981, held that as the deficient court-fee was made good after the period of limitation had expired, no indulgence could be shown to the petitioners/plaintiffs to make good the same at such a late stage and he, therefore, dismissed the suit. The petitioners thereupon preferred an appeal before the Additional Commissioner (Rev.) against the said judgment, which was dismissed on 29th March, 1982. A revision petition filed by them before the Board of Revenue, Punjab, also met the same fate on 27th April, 1982. Being aggrieved by the said orders passed by the Officers of Revenue, the petitioners/ plaintiffs have now filed the present constitutional petition, which is now before me for disposal.
3. Learned counsel for the petitioners, in support of his petition, has made the following submission.
First, that under para. 25 of the Martial Law Regulation No, 115, only an appeal and a revision is provided, but no review and, therefore, the Collector/A. D. C. (Rev.) Rawalpindi, had no right of reviewing his earlier order dated 26th August, 1981. In this connection, learned counsel has referred to Muzaffar Ali v. Muhammad Shafi to show that a power of review cannot be implied, but must be expressly conferred by a statute. Second, that the power of review is circumscribed by considerations which are stated in Order XLVII of the Code of Civil Procedure and the same not being present in the present case and no formal application for review having been filed for the exercise of such a power, the Collector/A. D. C. (Rev.) had no power to review his earlier order. In this connection, learned counsel has Muhammad Yaqub v. Saeed Shah. Third, that the petitioners/placitedintiffs had deposited the deficient court-fee on the basis of the order passed by the trial Court on 29th July, 1981 and since the order of deposit of deficient court-fee was complied with at the earliest instance on 26th August, 1981, section 149 of the Code of Civil Procedure became applicable and the payment of the deficient court-fee had the same force and effect as if it had been paid in the first instance. In this connection, learned counsel has relied upon Jowala Singh and others v. Mst. Dhano and others, Har Lal and others v. Sri Ram, Salahuddin v. Muhammad Alam and Mst. Parveen v. Mst. Jcimsheda Begum and others.
4. Learned counsel for the respondents, in reply to the arguments addressed on behalf of the petitioners, has made the following submissions First, that the interim order of the Collector/A. D. C.
(Rev.), Rawalpindi, dated 26th August, 1981 was not a final order as was reviewable under Order XLVII, C. P. C. But could be reviewed under the inherent powers of the Collector under section 151, C.
P. C. With regard to the proposition that only final orders can be reviewed under Order XLVII. C. P. C.
Learned counsel has referred to Mst. Allah Rakhi v. Mst. Raj Bibi. With regard to the proposition that1 2 3 4 5 6 7 interim orders can always be reviewed by Courts under the inherent powers vested in them under section 151, C. P. C. Or under section 21 of the General Clauses Act, learned counsel has referred to Muhammad Aslam Mirza v. Mst Khurshid Begum, Mani Lal and others v. Durga Prasad and others and Yusuf I. A. Lalji and others v. Abdullahboy Lalji and others. In this connection, learned counsel also submits that under para. 25 (8) of the Martial Law Regulation No, 115, the Collector,. The Commissioner and the Board of Revenue are to be deemed to be civil Courts and to have all the powers of a civil Court under the law that may be available for the time being in force and the final order passed in such suits has to be deemed to be a decree of a civil Court which can be executed as such. Second, that in the instant case, objection about limitation and improper valuation of the suit for the purposes of court-fees by the petitioners/plaintiffs had been taken at the very first instance by the respondents/tenants in their written statement which was filed on 28th December, 1976, whereupon, in the issues framed on 3rd March, 1980, the issues regarding limitation and whether proper court-fee had been paid by the petitioners/plaintiffs were also struck and without deciding the said issues, the Court could not be deemed to have compromised the case of the respondents/defendants by merely recording on 26th August, 1981 that deficient court-fee of Rs, 375 had been deposited in Court that day. In this connection, learned counsel submits that the said interim order must be read as subject to the objections filed by the respondent/defendants in their written statement about the proper payment of court-fees and limitation and that, therefore, the respondents/defendants had the right of agitating the said questions as it affected limitation and their rights. In this connection, learned counsel has referred to H. H. S. Feldman v. The Province of East Bengal. Third, it is submitted that the petitioners/plaintiffs ma/a fide instituted their suit on a ridiculously low court-fee of Rs, 37.50 and since the initial valuation of their suit for the purposes of court-fee was mala fide and the petitioners/plaintiffs, though called upon to file Naqsha Jhar Paidawar by 12th January, 1981, took seven hearings and filed the same on 20th May, 1981 and another five to deposit and make good the deficit court-fee on 26th August, 1981, that discretion under section 149, C. P. C. Could not be exercised in their favour and their suit must be deemed to have been filed after limitation. In this connection learned counsel has cited Muhammad Siddiq and others v. Mmad Ibrahim and others. Fourth and last, that three revenue Courts having given their findings on the question that the pctitionersj plaintiffs were not entitled to any discretion under section 149, C. P. C. This Court, in constitutional jurisdiction, should not interfere with their orders, as the same Were neither illegal, without jurisdiction or against the law declared by the superior Courts. In this connection, learned counsel has referred to Hassan Muhammad and others v.
Zeenat Begum, Mst. Asma Jilani v. The Government of the Punjab and another, Begum Wazir Ahmad Industrial Home v. Mst. Niaz Begum and Khushdil and others v. The State.
5. I have given my anxious consideration to this case. From a plain reading of para. 25 of the Martial Law Regulation No 115, there cannot be A any doubt that no review is provided therein. A review has to be provided by statute and, unless so provided, cannot be inferred from circumstances alieunde. However, sub-para. (8) of para. 25 states :- "8. For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a civil Court and shall have all powers of a civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a civil Court and shall be executed as such."
' It is, therefore, clear that a Collector trying an original matter, a Commissioner of Revenue hearing an appeal against the order of a Collector, and the Board of Revenue hearing a revision from any order passed by a Collector or a Commissioner, are to be treated as if they are Civil Courts having all the powers of a civil Court under any law for the time being in force. Since the powers of a civil Court are contained in the Code of Civil Procedure, all these three revenue Courts can exercise the powers available under the said Code. One of the powers so available is that provided by section8 9 10 11 12 13 14 15 16 151, C. P. C. In short, therefore, the Collector, the Com- missioner and the Board of Revenue shall be deemed to have inherent powers, which the civil Court has, to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In the instant case, the respondents/defendants took up the objection regarding the deficit payment of court- fees by the petitioners/plaintiffs in their written statement on 28th December, 1976. When issues were framed on 3rd March, 1980, the issue regarding limitation and the deficit payment of court- fees were also framed. The respondents/defendants, therefore, went on record as being objectors in the said matter. On 22nd December, 1980, they also pointed out that the petitioners/plaintiffs had not filed Naqsha Jhar Paidawar, from which it could be determined whether their assessment for the purposes of court-fee was properly made. The petitioners/plaintiffs had not filed Naqsha Jhar Paidawar initially with their suit, to affirm their assessment for the purposes of court-fee as properly made. The petitioners/plaintiffs were directed to produce Naqsha Jhar Paidawar on 12th August, 1981, but they did not do so till 20th May, 1981, which was after seven hearings. They then took another four hearings to file their amended plaint. They then were asked to make up the deficit court-fee on 29th July, 1981. Since the respondents/defendants were already on record as objectors to the court-fe valuation and regarding limitation, it could not be said that the order of 29th July, 1981 directing the deficit court-fee to be made good or that c dated 26th August, 1981 regarding the deposit of the said deficient court-fee in Court, was an order under section 149, C. P. C. Passed after hearing the respondents/defendants. The view taken in Jowala Singh's rase and Har Lal's case was not accepted by the West Pakistan High Court in Feldman'3 case, which view appears' to be correct and proper. Feldman's case was not pointed out when Salahuadin's case was argued. The interim Orders dated 29th July, 1981 and 26th August, 1981 must be deemed to b subject to the objections taken by the respondent/defendants in their written statement and Issues Nos. 1 and 4 framed regarding limitation and regarding the improper valuation of the suit for the purposes of court- fees, which had to be decided. These two orders i,e,, that dated 29th July, 1981 and 26th August, 1981, must, therefore, be deemed to be interim orders made, subject to the determination of the said issues. None of these orders can treated as final orders passed under section 149, C. P. C. This is obvious, when one reads the order dated 28th September, 1981, where the counsel of the respondents/defendants requested the Collector/A. D. C. (Rev.), Rawal pindi, to decide the said Issue No, 4 which, with the consent of the counsel for both the parties, was ordered to be put up for arguments on 30th November, 1981. The Collector/A. D. C. (Rev.), Rawalpindi, refers in his order dated 30th November, 1981, to section 114, C. P. C. As the power availabl to him to review the earlier order, but even assuming that the said section is not available, his order can be supported under section 151, C. P. C. In fact the reasons given by the learned Collector for reviewin his order clearly show that he desired to exercise his inherent powers, though erroneously he referred to section 114 instead of section 151, C.P.C. Mani Lal and others v. Durga Prasad and others, Yousaf I. A. Lalji and others v. Abdullabhy and others, support the view that interlocutory orders can be reviewed by Civil Courts under the inherent powers. In Muhammad Aslam Mirza v. Mst. Khurshid Begum, inherent powers available under section 21 of the General Clauses Act, were also applied in case of need. In these circumstances, the Collector/A. D. C. (Rev.), Rawalpindi, committed no illegality in exercising his inherent jurisdiction in setting aside his earlier interim order dated 26th August, 1981 in order to open up the matter and, on the basis of the joint statement made by the parties on 28th September. 1981, to take up issue No, 4 on the basis of arguments. At this stage it may be stated that the order dated 28th September, 1981 does not show that either party wanted to adduce any evidence. It appears that both the parties were agreeable to have the dispute regarding issue No, 4 settled by arguments alone.
6.This now leaves me with the main question, namely, whether, the revenue Courts properly exercised their discretion in holding that the petitioners/plaintiffs were not entitled to the discretion available under section 149, C. P. C. To make good the deficient court-fee. There cannot be any doubt that the present suit, which was instituted on 26th March, 197 was on a court-fee valuation of Rs, 500 on which court-fee of Rs, 37.50 was paid. Naqsha Jhar Paidawar filed later shows that the court-fee valuation was definitely much higher than originally given and that total court-fees of Rs, 412.50 should actually have been paid. Even assuming that their initial valuation was not mala fide, their conduct in not simultaneously applying to the Court for permission to file Naqsha Jhar Paidawar and to make good the deficient court-fees, as is generally done in pre-emption cases, show their mala fide. At no stage they took any steps to file the Naqsha Jhar Paidawa in order to make good the deficit court-fees. On the contrary, the respondents/defendants had to compel the Collector/A. D. C. (Rev.), Rawalpindi, to direct the petitioners/plaintiffs to file the Naqsha Jhar Paidawar, in order to determine whether their valuation given was correct. This document was filed by the petitioners/plaintiffs after seven hearings. They then took three more hearings to file their amended plaint and another two to file the deficient court-fees. Their conduct shows mala fide and contumacious disregard of Collector's orders. The decisions of all the revenue Courts, therefore, do not appear to be illegal or perverse or based on any misreading of the evidence.Even otherwise, this Court, in its constitutional jurisdiction, has no power to interfere in respect of orders passed by a competent Court or Tribunal, acting within the scope of its own jurisdiction, unless it can be shown that it has acted without jurisdiction or in violation of any statute or law or principle as laid down by the superior Courts, which is not so in the present case.
7. The upshot of the above discussion is that the orders of the lower revenue Courts are legal and correct. No interference in the constitutional jurisdiction is called for. There being no merit in this writ petition, the same is dismissed.
8. There shall be no order as to costs. P L ID 1981 SC 94 PLD 1961 Kar. 656 AIR 1932 Lah. 21 AIR. 1933 Lab. 598 1981 CLC 59 P L A 1983 SC 227 PLD 1957 Lah. 70 PLD 1972 Lah. 603 AIR 1924 Pat. 673 I R 1930 Born. 294 PLD 1970 Kar. 295 PLD 1981 B J Z3 1981 SC MR 1059 PLD 1972 SC 139 PLD 1976 SC 214 PLD 1981 SC 582