1. ' AJMAL MIAN, J.-The petitioner by this [petition has impugned the order dated 13th December, 1981 passed by respondent No, 2 in case No, S R 0-A-203 of 1980-81.
2. The relevant facts leading to the filing of the above petition are that one Muhammad Ayoub Khan owned considerable agricultural land. He died in 1951, leaving behind the following three sons, two daughters and one widow :-
(i) Sultan Ahmed alias Bhooro Khan son
(ii) Agha. Abdul Rehman Khan
(iii) Nooruddin Khan
(iv) Mst. Khurshid Bibi daughter
(v) Mst. Badrunnisa
(vi) Mst. Gulbibi widow ' It seems that after his death an application under section 22 of the Arbitration Act (which was registered as Suit No, 38/1954) was filed for referring the question of inheritance to a sole arbitrator, who gave an award on 23rd June, 1955, which was subsequently amended by the consent of the parties on 21st December, 1955. After that the award was made rule of the Court and a decree in terms of the award was drawn on 23rd December, 1955. It may be observed that the present petition has been filed by one of the daughters of late Ayoub Khan, Mst. Khurshid Bibi against the legal heirs of one of the sons, Agha Abdul Rehman (i,e, Respondent Nos. 3-4 are the sons whereas respondent No, 5 is the widow of late Agha Abdul Rehman). The parties to the above petition are at issue as to the import of the terms of the amended award. However, it will suffice to observe that under the above decree each of the daughters was to be paid Rs, 1.200 per annum by each of the three sons i,e, Its. 300 per month, and the land was to be managed by Agha Abdul Rehman. It is the case of the petitioner that in terms of the above decree in the event of default the petitioner was entitled to the land allocated to her, whereas it is the case of the private respondents that the petitioner had caused to have any interest in the said land in terms of the aforesaid consent decree. Be that as it may, the present petitioner filed an application in 1975 addressed to the then Chief Minister of Sind, requesting him that the management of her share in the above agricultural land under the above decree be taken over under the Court of Wards Act, 1905. The above application was accepted and a notification dated 3rd February, 1975 was issued, resuming the management of the above agricultural land. The respondents being aggrieved by the above notification filed aforesaid appeal, which was allowed by the aforesaid order dated 13th December, 1981 passed by respondent No,
2. Tae petitioner being aggrieved by the above order has filed the present petition.
3. 2 (a) In support of the above petition Mr. Aslam Bhutto, learned counsel for the petitioner has argued that respondent No, 2 without any notice of hearing to the petitioner or to her counsel for 3rd December, 1981 and without hearing them decided the appeal and, therefore, the order is liable to be set aside.
(b) On the other hand Mr. Ghulam Hussain Abbasi, learned counsel for the private respondents has urged as follows :-
(i) That as the appeal was under section 43 of the Court of Wards Act, 1905. It was akin to a revision under section 211 of the Sind Land Revenue Code and, therefore, in law no notice was required to be served on the parties before disposing of the above appeal and hence the appellate order cannot be set aside on the ground of want of service of a notice.
(ii) That in any case the petitioner was served the notice of the filing of the aforesaid appeal in fact had put in appearance through her Advocate and had participated in the proceedings and that a case was adjourned from 22nd October to 3rd December, 1981 in response to the petitioner's Advocate's request contained in a telegram on the ground of his illness and, therefore, it was the duty of the petitioner or her counsel to have ascertained the next date of hearing.
3. Before taking up the above contentions, it may be pertinent to deal with the factual side of the case. In the memo. Of petition. The petitioner has averred that neither she nor her Advocate was served with any notice for 3rd December, 1981. This averment has been supported by an affidavit.
4. The official respondents have not filed any counter-affidavit nor produced any record to indicate that in fact the notice for the above date of hearing was issued and received by the petitioner though they were represented in the above petition by the learned Assistant Advocate-General Mr. Sarfraz Ahmed. However, private respondents have filed a counter-affidavit, in which there is no express denial of the above averment of the petitioner. The private respondents have made following averments in paras. 8 and 9 of their counter-affidavit, which read as follows :- "8. I say that on 3rd December, 1981 the learned Member Board of of Revenue while waiting for the petitioner and her counsel, repeatedly asked his reader and the concerned office staff whether the notice was sent to the respondents or that there was any intimation from them for their absence but the reader in my presence showed the file to the learned Member wherein the despatch of the notice of hearing of appeal on 3rd December, 1981 was noted. It was after fully satisfying himself that proper notice was sent to the respondent that the learned Member proceeded to hear the appeal. Certified copy of notice is annexed hereto and marked `R-5'.
9. I say that the petitioner was grossly negligent and careless and despite the receipt of notice she did not want to proceed with the matter at Karachi as it would be observed that neither she nor her counsel ever appeared at Karachi. In any case on her own showing when the hearing of appeal was fixed on 22nd October, 1981, the counsel of the petitioner sent a telegram for an adjournment on the ground of illness. The hearing was adjourned to 3rd December, 1981 i,e, after six weeks.
5. During this entire period they never cared to find out the result of their request for adjournment on 22nd October, 1981 nor did they find out about the next date. The judgment was reserved for 10 days on 13th December, 1981. Even during this period they remained complacent by putting the entire burden on the Board of Revenue to keep the petitioner and her counsel informed about the proceedings without accepting their own receiprocal commitment for the pending proceedings in the Court. There can be no possible excuse for such an act of gross negligence on the part of a party in the live cause."
6. ' Since there is no express denial to the petitioner's averment that she and her Advocate had not received any notice of hearing for 3rd December, 1981, it is to be held that the above averment is correct.
4. (a) This leads us to the two contentions advanced by the learned counsel for the private respondents. As regards the first contention that section 43 of the Court of Wards Act, 1905 (hereinafter referred to as the Act) is akin to section 211 of the Sind Land Revenue Code (hereinafter referred to as the Code), and therefore, no notice was required to be served before disposal of the above appeal, it may be observed that Mr. Abbasi has referred to sections 43 and 44 of the Act and section 211 of the Code and has also referred to the case of Allahdino v. Fakir Muhammad and another and the case of Lord New-borough v. Jones. It may be advantageous to reproduce hereinbelow sections 43 and 44 of the Act and section 211 of the Code, which read as follows.;- 'Section 43.-(1) An appeal shall lie from every order, other than an order of the District Court, passed under this Act, whether original or on appeal,-
(a) Where the order is that of a Commissioner or of any special or other officer appointed, or Board constituted, under the proviso to section 3, to the Board of Revenue.
(b) Where the order is that of a Collector, to the Commissioner, or where any such officer or Board has jurisdiction, to such officer or Board ; and
(c) In all other cases, to the Collector : Provided that where any such officer or Board has been appointed to be Court of Wards and the order has been passed by any officer subordinate to such Court of Wards for the purpose of this Act, the Provincial Government may direct that appeals shall lie to such officer or Board.
(2) The provisions of sections 205 to 210, both inclusive, of the Sind Land Revenue Code, 1879, shall apply to all such appeals.
7. ' Section 44 . All orders or proceedings under this Act, other than orders or proceedings of the District Court, shall be subject to the supervision and control of the Provincial Government and the Provincial Government may, if it thinks fit, revise, modify or reverse any such order or proceedings, whether an appeal is presented against any such order or proceeding or not."
8. "Section 211. The Board of Revenue and any Revenue Officer, not inferior in rank to an Assistant or Deputy Collector or a superintendent of Survey, in their respective departments. May call for and examine the record of an inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying itself or himself as the case may be as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. The following officers may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held, namely, a Mukhtiarkar, Mahalkari, and Assistant Superintendent of ' Survey and an Assistant Settlement Officer.
9. ' If in any cases, it shall appear to the Provincial Government or to such officer aforesaid, that any decision or order or proceeding so called for should be modified, annulled or reversed it or he may pass such order thereon as it or he deems fit : ' Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector,1 2 who shall pass such order thereon as he may deem fit."
10. ' It may be noticed that under subsection (1) of section 43, an appeal is provided against an order whether original or on appeal, to the Board in case of an order passed by a Commissioner or by any special or other officer appointed, to the Commissioner if the order is passed by a Collector in all other cases to the Collector, whereas subsection (2) provides that sections 205 to 210 (both inclusive) of the Code shall apply to all such appeals. It may further be noticed that under section 44 all orders and all proceedings under the Act other than the orders or proceedings of the District Court are subject to the supervision and control of the Provincial Government, which has been empowered if it thinks fit, to revise, modify or reverse any such order or proceeding, irrespective of the fact whether an appeal is presented against such order or proceeding or not.
11. ' Whereas section 211 of the Code provides that the Board of Revenue and any Revenue Officer not inferior in rank to an Assistant or Deputy Collector or the Superintendent of Survey in their respective department may call for and examine the record of any inquiry or proceeding of any subordinate Revenue Officer for the purpose of satisfying itself or propriety of any decision or order passed and as to the regularity of the proceedings of such officers.
(b) It may also be advantageous to refer to para. 21 of the above Supreme Court judgment, relied upon by Mr. G. H. Abbasi which, reads as follows :- "(21)" In the present case, the relevant provision is section 211 of the Sind Land Revenue Code, 1879.
12. ' Its relevant parts are as follows :- "The Provincial Government and any Revenue Officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective Departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying itself or himself as the case may be as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
13. ' If in any case, it shall appear to the Provincial Government or to such officer aforesaid, that any decision or order or proceedings so-called for should be modified, annulled or reversed it or he may pass such order thereon as it or he deems fit."
14. There is no provision for granting a hearing to a party in the above section. It is, however, a requirement of the Natural Principles of Justice that a opportunity of being heard be given to the party against whom any order o decision may be made. But as indicated in the University of Dacca and an other v. Zakir Ahmed important peculiarities of each case ought to be taken into consideration. The nature of inquiry, the rules of a tribunal, A the kind of procedure and the subject matter of inquiry are some of the important considerations. I can safely add to them the conduct of the part concerned. K. S. Gupt a had reproduced in his commentary on section 2 of the Bombay Land Revenue Code, which is exactly the same as section 209 of the Sind Land Revenue Code the following extract from the debate of the Bombay Legislative Council held in 1932 at the time of the addition of a proviso to the section to dispense, in certain circumstances, with the requirement of recording reasons for decisions given in appeals :- "Revenue Officers receive an enormous number of appeals, some of them require the most careful consideration, while others require practically no consideration at all. When an appeal is made to the Provincial Government, the Commissioner or the Collector if and when Government or the Commissioner or Collector upsets the order of the authority below, it generally happens that they record their reasons because they wish the authorities below to understand what it is, but when they are merely rejecting appeals then it is pure waste of time for them to make any attempt to write a judgment."
15. ' It may be observed that the above quoted para. Of the judgment is from the minority judgment given by Qadeeruddin, J. However, it was urged by Mr. G. H. Abbasi that since the difference of opinion between the majority and the minority view was on a different point than the point in issue, the minority judgment can be pressed in service in support of his above argument. It may be pointed out that he has particularly relied upon the quotation from K. S. Gupta's Commentary on section 209 of the Bombay Land Revenue Code, referred to in the above minority judgment with approval, in which the author had opined that the Revenue Authorities were not obliged to give any reason while rejecting the appeals summarily.
(c) Referring to the case reported in 1974 (3) All England Law Reports page 17, it may be mentioned that the facts of the above case were that in March, 1971 the landlords of certain agricultural holdings sent to the tenant (by recorded delivery) a copy of notice to quit but the same could not be served. After that the landlord went to the tenant's farm house on 23rd March, 1971 with a copy of notice accompanied by witness. He knocked at the door of tenant but as there was no response and as there was no letter box or slit in either of the front or back door of the house, the landlord pushed the notice under the back door which was the one in regular use by the tenant and his family but the notice did not come to the knowledge of the tenant until August when his wife discovered it under the linoleum inside the back door. The question before the Court of Appeal was whether there was proper service of notice by the landlord in terms of section 92 (1) of the Agricultural Holdings Act. It was held that the landlord had attempted to serve notice in a manner, which a reasonable person would have adopted and that in fact there was proper service of the notice.
16. (d)In our view section 43 is independent from section 44 of the Act. Section 43 gives a right to a party to file an appeal against an order specified in the above section, whereas section 44 confers over all a revisionary power on the Provincial Government. We are inclined to hold that above section 43 cannot be equated with section 211 of the Code as the right of appeal given to an aggrieved party is different from a revisional power conferred on the authority concerned.
17. However, section 44 can be equated with section 211. Since the appeal filed by the private respondents was under section 4 and not a revision under section 44 of the Act, the above argument canvassed before us by Mr. Abbasi is untenable. The right of appeal inherently include the right of personal hearing unless it is expressly or by necessary implication taken away by the enactment or the rule which confers such right. In the instant case we do not find take away the right of ,personal hearing from the parties to an appeal under section 43 of the Act. , In this regard, it may be pertinent to refer to the celebrated case, namely, the Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak, in which it was held by the Hon'ble Supreme Court of Pakistan that when a statute gives right of appeal, it should be understood as silently implying when it does not expressly provide that the appellant shall have the right of being heard. It was further held that mere consideration of the grounds of appeal by an appellate authority without personal hearing does not constitute a hearing of appeal. This view has not been modified by our Supreme Court till today. In this view of the matter, the minority judgment of the Hon'ble Supreme Court in the above case of 1969 is of no assistance to the learned counsel for the private respondents as it does not cover the point in issue. Similarly, the English case of the Court of Appeal relied upon by Mr. Abbasi has no application to the facts of the present case. In the above English case the landlord made all reasonable efforts to serve a notice upon the tenant before the target date and since he could not serve the same through ordinary mode, he effected the service by leaving the same at the door which was in common use of the tenant and his family in the presence of a witness, which was also a well recognised mode of service of a notice. In the background of the above facts, it was held by the Court of Appeal that there was valid service of notice under section 92 (1) of the Agricultural Holdings Act, 1948. In the instant case nothing has been brought on record to indicate that even a notice was issued and posted, what to say about any efforts to serve the same out the petitioner or on her counsel.3
5. Reverting to the second contention of Mr. G. H. Abbasi that since the petitioner was served with the notice of the appeal and had in fact put in appearance through her Advocate and that the appeal was in fact adjourned from 22nd October, 1981 to 3rd December, 1981 in response to the learned counsel for the petitioner's request contained in his telegram on the ground of his illness there was no need of service of any fresh notice for 3rd December, 1981 as it was the duty of the petitioner or her counsel to ascertain the next date of hearing, it may be pertinent to observe that the Board of Revenue Sind has its head office at Hyderabad. However, the appeals/ revisions filed in the Board of Revenue are generally disposed of at camp offices pertaining to the area, to which the dispute relates. From the case diary (Annexure R-4 to the counter-affidavit of the private respondents), it seems that the appeal in question was taken up for katcha peshi on 5th March, 1981 at camp office, Karachi and the appeal was admitted and notice was ordered for 6th June, 1981 at Hyderabad. On the latter date the private respondents were present in person, whereas the petitioner was represented by her advocate. The case was adjourned on 19th July, 1981 as the learned Member Board of Revenue was busy in the official work at Karachi. On 19th July, 1981 the case was adjourned at the request of the counsel of the private respondents for 17th September, 1981. On the latter date it was again adjourned to 22nd October, 1981, as the Member Board of Revenue was busy in the official work. On the latter date it was adjourned at the request of the Advocate for the petitioner. It may be advantageous to reproduce the order passed on the above date :- "Camp at Karachi. 22nd October, 1981. Petitioner Manzoor Ahmed present. His Advocate Mr. Ghulam Hussain Abbasi. Respondents absent. Put off to 3rd December, 1981. Issue notice to the respondent and her Advocate petitioner and his Advocate informed.
18. (Sd.) S. M. B. R."
19. ' It may be noticed that as per above order notice was to be issued to the Petitioner and her Advocate for 3rd December, 1981 The private respondents have filed annexure R/5 which is an alleged copy of notice issued by the Reader of respondent No, 2 on or about 21st November, 1981.
20. The relevant portion of the above notice reads as follows :- "Before Mr. Abdullah D. Baloch Senior Member, Board of Revenue and Chief Land Commissioner.
21. Sind, Hyderabad.
22. ' For Petitioner Manzoor Ahmed Khan.
23. No, Reader/SMBR/81/1036 Board of Revenue Sind, Hyderabad dated :---22.11.1981.
24. ' For Respondent Mst. Khurshid Bibi.
25. ' Office copy to be returned with acknowledgments of parties Mst. Khurshid Bibi w/o Agha Nawab Khan Pathan. Household Lady r/o Sultan Kot Taluka Shikarpur.
26. ' Mukhtiarkar Shikarpur :- Service upon the respondent and served copy of notice may be sent by post before the date of hearing."
27. ' This notice was to be served through the Mukhtiarkar Shikarpur on the Petitioner and he was directed to return the notice after service.
28. ' There is nothing on record to indicate that this notice was even posted or that it was received by the Mukhtiarkar concernend for service c); whether he made any efforts to serve the above notice.
29. We have already held thereinabove that in view of the absence of any express denial to the petitioner' averment that neither she nor her Advocate was served for 3rd December, 1981 we have to hold that there was no service of notice.
30. ' We have, therefore, to examine Mr. Abbasi's above contention on merits. In support of his above contention he has referred to the case of Mian Komaluddin v. Malik Muhammad Bashir and others, the case of K. B. H. M. Habibullah v. Shaikh Mahboob Alain, the case of Abdul Shahkor Haji Amiruddin v. Mrs. Mumtaz and others and the case of Mumtozdin Ahmed v. Mst. Sultan Jehan4 5 6 Begum. In the first case a Division Bench of the Lahore High Court while construing Article 164 of the Limitation Act held that summons referred to in the above Article are the first summons issued to the defendant after the institution of the suit and once a party receives intimation or communication, it is for him to pursue and to keep in touch with the proceedings either personally or through his counsel. In the second case a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, held that illness of a counsel itself is not sufficient cause under Order IX, rule 9, C. P. C. When the Vakalatnama was in favour of two advocates and one of them was ill the other was not ill though the Advocate who was ill used to look after civil cases. In the third case M.
31. R. Kayani, C. J. While sitting at Karachi Bench of the erstwhile High Court of West Pakistan. Held that the parties and their counsel's duty is to keep in touch with proceeding of cases, after intimation of the same to them. In the fourth case one of us (Ajmal Mian, J.) while construing section 14 of the Sind Rented Premises Ordinance, 1979 held that the manner of holding inquiry or conducting proceedings under the above section is entirely left to the authority concerned and only requirement is that an affected party be given a fair opportunity.
32. There cannot be any cavil to the proposition that once a party is served with the notice of institution of a case against him, he is obliged to keep himself informed as to the progress.
33. However we cannot overlook the fact that in case of appeals, revisions and writ petitions etc. If the parties are not represented by advocates they are sent notices for each date of hearing. If they are represented by an advocate and his address for service is not at Karachi at Sukkur, where the case is to be heard a notice for the each date of hearing is issued to the advocate concerned in order to intimate the date of hearing under the High Court Appellate Side Rules. In the instant case the Board of Revenue has its head office at Hyderabad and its Members hear cases at camp offices from place to place. The land in dispute is situated in Shikarpur District, whereas the Petitioners'
34. Advocate is practising at Sukkur. The case could have been heard at Shikarpur at camp office. The instant case was taken up at Karachi as well as at Hyderabad. On 22nd October, 1981 the case was taken up at Hyderabad and when it was adjourned, it wa expressly ordered that the notice for the next date of hearing should b issued to the petitioner and her Advocate. In our view, since there was n modification of the above order, the appeal could not have been heard an F decided against the petitioner in case no notice was served on the petitioner or her counsel, particularly when there was no allegation that the petitioner or her counsel are avoiding service or delaying the disposal of the appeal. We, therefore, allow the petition and quash the impugned order and remand the case to respondent No, 2 with the direction to dispose of the same with- I in three months from the date of the receipt of a copy of this order. In the circumstances of the case, there will be no order as to costs.
35. Petition accepted. PLD 1969 SC 582 (1974) 3 All E L R 17 PLD 1965 SC 90 PLD 1959 SC (Pak.) 45 PLD 1952 Lahore 456 PLD 1959 Kar. 143 PLD 1961 Ku. 145 p L D 1981 Kar. 3297 1 2 3 4 5 6 7