' Present constitution petition is against order, dated 2-4-1984 passed by learned Member, Board of Revenue, refusing to review his earlier order, dated 29-11-1983 dismissing revision petition for making default in appearance.
2. Relevant facts are:- Inayat Masih instituted a suit for possession by pre-emption in respect of land measuring 41 Kanals and 18 Marlas, out of total land measuring 60 Kanals 17 Marlas, comprised in several khasra numbers, purchased by one Ejaz from its previous owner. Suit was contested by the vendee.
Several issues, arising from the pleadings of the parties were framed by learned Collector, Narowal.
After recording evidence and hearing the parties and their counsel, suit was decreed in favour of the pre-emptor vide judgment and decree, dated 28-3-1982 by Assistant Commissioner/Collector, Narowal. Vendee preferred an appeal in the Court of Additional Commissioner, Gujranwala Division.
Appeal, was accepted vide order, 21-6-1983 and the suit dismissed on ground of bar of limitation.
Plaintiff/pre-emptor, preferred a revision, before Member, Board of Revenue, under para. 25 of the Land Reforms Regulation 115 of 1972 as amended. Revision was filed, well within limitation. Learned Member, Board of Revenue, on 10-8-1983, passed the following order:- "Order ' Heard. Admit. Case for 29-11-1983. Notice to respondent and call for the lower Court's record."
' On 29-11-1983 since the petitioner and his counsel both absented, the case went by default.
Learned Member, observed:- "Order ' The counsel for the petitioner was present on the last date of hearing and the case was adjourned for 29-11-1983. Today neither the counsel nor the petitioner is present. The case is, therefore, dismissed in default." ' lnayat Masih then filed a review petition praying for recalling order, dated 29-11-1983 in Review Petition No. 104 of 1984. He did not succeed and his petition was dismissed vide order, dated 2-4- 1984 by learned Member. It was observed:- "This is a review petition filed against my orders, dated 29-11-1983, passed in ROR No. 1871 of 1983, whereby the revision was dismissed in default for non-prosecution.
2. I have heard the learned counsel for the petitioner in preliminary hearing. It is conceded by the learned counsel for the petitioner that no application was filed by the petitioner for restoration of the revision, dismissed in default. The application now moved for review itself has been filed with a delay of twenty-four days, over and above ninety days limitation allowed under the Limitation Act. I am not persuaded that any legitimate explanation exists for the failure of the petitioner to move the Court for restoration of the revision or for the delay in coming to the Court of review. I would, therefore, dismiss this review petition as time-barred, in limine.
3. In this background, the petitioner has come to this Court, in its constitutional jurisdiction. Learned counsel for the parties have been heard and record examined. Learned counsel for the writ petitioner contended that the revision petition was dismissed in default. An applica tion for restoration was filed which was wrongly described as a review petition by his learned couhsel.
Powers of review, under para. 25 of the Land Reforms Regulation were in fact not available. In this view of the matter, learned Member, Board of Revenue, was competent, to order restoration in exercise of inherent powers of the Court. He stated that there was no express power given to dismiss the revision petition in default. Dismissal is made under inherent powers of the Court.
Similarly, restoration is ordered in the same source of power. He contended that the authority which has the powers to dismiss the petition is fully clothed with powers to order restoration. No period of limitation was prescribed for a restoration petition. In this view of the matter, learned counsel, contended that learned Member, Board of Revenue was bound to decide the petition for restoration on its merits after holding an inquiry into the sufficiency of the cause assigned for the default made on 29-11-1983. Without going into the merits of the restoration petition, it could not be dismissed on account of an expiry of the period of limitation when none applied. Learned counsel for the respondent however, stated that the petitioner committed a deliberate default on 29-11- 1983, and failed to enter appearance. Both the petitioner and his learned counsel showed extreme negligence in prosecution of the revision petition. Consequently they cannot be heard to say that default was not unintentional. He also contended that the review petition was barred by time.
However, both the learned counsel have failed to point out any Article in Limitation Act, 1908, applying to a petition for restoration of a revision dismissed in default of appearance.
Power to entertain, hear and decide a pre-emption suit, instituted by a tenant in respect of sale of land comprised in his tenancy, has been conferred exclusively on the Court of Collector vide para. 25(5) of the Land Reforms Regulation 115 of 1972 as amended by Act XLVIII of 1976. In sub-para. (6), right of appeal, has been given to a person aggrieved by order/decision of the Collector. This appeal, lies before Commissioner of the Division. Power of revision has been given to the Board of Revenue. Limitation prescribed for preferring an appeal and revision is 30 days, from the date of order. Collector/Commissioner, and the Board of Revenue in terms of sub-para. (8) of the aforenoted para. 25 of the Regulation, are deemed to be civil Courts possessed of all the powers of a civil Court under any law for the time being in force. Power to file appeal and revision have been expressly conferred, but no mention is made of power/right of review. Review like appeal and revision is a substantive right and is always a creation of relevant statute on the subject. It has to be conferred in express terms by the relevant provisions of the statute and cannot be assumed to exist. Reference, with advantage, can be made to, Muzaffar All v. Muhammad Shall PLD 1981 SC 94.
Reading of paragraph 25 of the Regulation, shows that while right to file appeal, revision has been expressly conferred, power to review has not been given. From this it can be safely assumed that power of review does not exist as is the case with the civil Court under section 114 read with Order XLVII of Code of Civil Procedure. If the law-maker wanted to confer such jurisdic tion nothing debarred it from expressing its intent in clear terms. Petition for review however in fact, was a petition for restoration and could be treated as such by learned Member, Board of Revenue. In Babu v. Mst. Niaz Bibi PLD 1982 Lah. 192, a learned Single Judge of this Court on the point whether a petition for revision dismissed in default can be restored, after survey of the precedent case law, observed that revision dismissed in default can be restored if sufficient cause was shown for the default committed. A similar question arose before learned Judge of Nagpur High Court in Dhondiba Appasaheb and another v. Wasudeo Anant Sherlekar and another AIR 1957 Nag.
83. Question before their Lordships was whether a revision petition dismissed in default of appearance can be restored. The answer was found in affirmative in the following observations:- "We agree that Order IX, rule 9 or Order XLI, rule 19 of the Civil Procedure Code does not apply to a civil revision petition and that there is no corresponding specific provision relating to it, but that does not mean that the Code has denied such a jurisdiction to the Court of revision. There is nothing in the Code to prohibit the restoration of a civil revision dismissed for default of appearance. To apply the provisions of S. 151 ibid to such a case (a case not covered by the express provisions of the Code is not to assume a jurisdiction not conferred by the Code ' There are the inherent powers which a Court can always invoke to do justice unless something prohibits the use of inherent powers or the Code has already provided for the matter in a certain way. The revision petition, can, in our opinion, be restored by this Court in exercise of its inherent jurisdiction under S. 151 of the Civil Procedure Code. This is the view expressed in Kanshi Ram v. Mst.
Dharmi AIR 1953 Him. P 102 (B), wherein Ramamurthi Iyer v. Meenakshizsunderammal (A) (supra) was not followed, and we accept the view with respect.
' It is based on the well-established principle that the inherent power of the Court is meant to meet those cases which are not covered by the express provisions of the Civil Procedure Code. Bhagat Singh v. Jagbir Sawhney AIR 1941 Cal. 670 (C). As regards Ramamurthi lyer v.
Meenakshisunderammal (A) (supra), Sinha, C.J. (as he then was) said in Jaichand v. Union of India Misc. Civil Case No. 53 of 1953, D/- 17-12-1953 (Nag) (D) that the authority of that decision had been very much shaken by the recent decision of the Supreme Court in Keshardeo v. Radha Kishen AIR 1953 SC 23 (E)
4. ' We find ourselves unable to follow the, view expressed in AIR 1945 Mad. 103 (A) and hold that in a fit case a dismissed revision petition can and should ex debito justitiae be restored under S. 151 of the Code of Civil Procedure."
5. No provision of law, has been cited in support of the period of limitation applicable to the restoration petition. In absence of such a provision, the Board of Revenue, was possessed of inherent jurisdiction to order restoration of the petition provided sufficient cause was shown for the default. In this case, as observed, learned Member, has proceeded to dismiss the petition for restoration solely on the ground that it was barred by time. This, in my view was not a correct approach. Restoration petition could not be thrown out on ground of limitation. An application for restoration of an application for revision is not governed by any express period of limitation.
Residuary Article 181 therefore, may be found to be applicable. In that context, the restoration petition, was obviously well within time.
6. In consequence, writ petition is allowed, impugned order dated 2-4-1984 is set aside and declared to have been passed without lawful authority. Necessary result of this is that review petition No. 104/84 is directed to be treated as a restoration petition and directed to be decided afresh on its own merits. Costs to be borne by the parties. Parties are directed to appear before the learned Member on 25-3-1985 for taking further proceedings in the matter.