' FAZAL ELAHI KHAN, J.--In this writ petition by Mian Said Habib and two others the order dated 21-2- 1989 passed by Additional Secretary Government of N.-W.F.P. Home and Tribal Affairs Department, Peshawar in revision is challenged before us. It was observed in the said order that on the death of Mian Abdul Hakim petitioner during pendency of the revision petition and his having been survived by his minor sons, the jurisdiction of the Court under PATA Regulation was ousted and the plaint was to be returned for presentation in a competent Court. At the same time the revision petition was held to have become infructuous.
2. Facts of the case, briefly stated, are that a dispute arose between Mian Gul Habib, petitioner No,2 and Mian Abdul Hakim, the predecessor-in-interest of respondents 5 to 11 as back as in the year 1973 which was referred to Qazi. On the parties' failure to settle their dispute in that forum the matter was referred to Tribunal with the consent of the parties under Provincially Administrated Tribal Areas Civil Procedure (Special Provisions) Regulation No, II of 1975, hereinafter to be referred PATA Regulation. The Tribunal in its unanimous award found petitioner No,2 herein, entitled to 1/4th share in the disputed land. The finding was accepted by the Assistant Commissioner Dir (respondent No,3) on 14-4-1983 in exercise of its powers as Deputy Commissioner under the Regulation. Aggrieved by the said judgment and decree Mian Abdul Hakim (now dead) alongwith Mian Muhammad Haleem, son of Akhoon Haleem, Fazal Ghafoor son of Muhammad Sharif, Said Mahmood Jan, Jan sons of Said Mian, challenged it in appeal in the Court of Additional Commissioner, Malakand Division (respondent No,2) but the same was dismissed on 22-4-1988.
Still dissatisfied Mian Muhammad Haleem and his brother Mian Abdul Hakeem (now dead) and others filed a revision petition against the judgments and orders of respondents 2 and 3 in the Court of respondent No,1 which was fixed for hearing on 23-1-1989.
' On the date of hearing an application was moved that Mian Abdul Hakim one of the petitioners had died on 23-12-1988 and that his legal representatives be brought on record as petitioners.
Respondent No,1, thereafter passed the impugned order. The aforementioned order is assailed before us in the present writ petition.
3. The grievance of the learned counsel, raised before us, is that the judgment and order passed by respondent No,2 in appeal and that of respondent No,3 (the original authority), in the life time of the predecessor-in-interest of respondents 4 to 9 could not attract the bar of jurisdiction under subsection (2) of section 3 of the Regulation on the death of one of the parties, if survived by a minor, at the appellate or revisional stage. According to the learned counsel jurisdiction under the PATA Regulation would be ousted only if the interest of a minor is involved in a dispute at the time of reference of such disptue to the Tribunal and its adjudication. Repelling the contention, the learned counsel for the respondents argued that appeal and revision both are deemed to be continuation of the suit, therefore, creation of minor's interest during the pendency of appeal and revision would attract the bar of jurisdiction under section 3 (2)(a) of the Regulation.
4. After hearing the learned counsel for the parties at length and perusal of the record it would be advantageous to refer to the relevant provision of the Regulation in the context of the present controversy. Section 3 of the Regulation, as amended by Provincially Administered Tribal Areas Special Provisions (Amendment) Regulation, 1976 (N.-W.F.P. Regulation No,IV of 1976) reads as follows:-- "Notwithstanding anything contained in any other law for the time being in force, all suits by a landlord for arrears of rent or the money equivalent of rent, or for sums recoverable under section 7 of the North-West Frontier Province Tenancy Act, 1950 (N.-W.F.P. Act XXV of 1950), and all cases of a civil nature shall, save as otherwise provided hereinafter, be referred to Jirga constituted under, and adjudicated upon in accordance with, the provisions of this Regulation."
(2) The following cases shall not be adjudicated upon under this Regulation, namely--
(a) cases in which the interest of a minor or of a person of unsound mind is involved;
(b) cases where provision for arbitration has been made in a contract between the parties;
(c) cases by or against the Federal or the Provincial Govrnment or a public Corporation or a public servant acting in the discharge of his duty.
The section clearly is general in nature which provides that all cases of dispute of civil nature be refered to Tribunal constituted under the Regulation for its adjudication in accordance with the provisions of the Regulation. The Deputy Commissioner takes cognizance of a dispute when any party to the dispute makes an application in writing for the adjudication or settlement of such case. The Deputy Commissioner then constitutes a Tribunal in accordance with section 5 and by order in writing refers the case to the Tribunal for a finding on such matters or issues as may be specified in the order. Section 8 of the Regulation provides for the procedure to be followed by the Tribunal when the case is referred to it. Opportunity of appearance is given, evidence is recorded and opportunity of cross-examination of the witnesses and representative through legal practitioner is also provided thereunder. On concluson of the proceedings the Tribunal is to give its finding in accordance with law, or the custom or usage having the force of law, and to submit it to the Deputy Commissioner in the form of a report containing reasons for such finding. The Deputy Commissioner, if the report does not give a finding on any matter or issue, may refer it to the Tribunal or any substantial part thereof, or if he is of opinion that there has been material irregularity or that the proceedings of the Tribunal have been so conducted as to occasion a miscarriage of justice, remand the matter or issue to the Tribunal or refer the matter or issue to a second Tribunal constituted in accordance with section 5. Where the finding of the Tribunal on the matter or issue referred to is unanimous or by a majority of its members and the Deputy Commissioner does not proceed under subsection (2), he is to decide the dispute and pass a decree in accordance with such finding. Section 11 of the Regulation gives a right of appeal to an aggrieved person against the decision given, decree passed or order made, by the Deputy Commissioner under the Regulation to the Commissioner within the period of limitation. Similarly section 12 provides for a revision which reads as under:-- "(1) Government may, within ninety days of any order passed by the Commissionier on an appeal either of its own motion or on the application of any party to a dispute call for and examine the record of any appeal disposed of by the Commissioner, for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, decree or order given, passed or made under this Regulation or as to the regularity of any proceedings thereunder and may, when calling for such record, direct, that the execution of the decree or order in question be suspended pending the examinaiton of the record;
(2) Government may, after examining any record called for under subsection (1) and giving the parties an opportunity of being heard, pass such orders as it may think fit."
(Underlining is ours).
Right of appeal and revision having been given in the Statute itself and the proceedings involving enforcement of a civil right the appellate Court in exercise of its power has to see to the soundness and correctness of the decision of the lower Court and to find out whether or not the decision has been obtained by fraud, is contrary to natural justice or that it has been passed without jurisdiction. The power of the revisional Court under the Regulation is to see to the correctness, legality or porpriety of a decision, decree or order given, passed or made under the Regulation impugned before it. Keeping in view the scope of exercise of revisional power it cannot be said that the death of one of the parties to the petition and such party survived by minor children would have any effect on a decision, decree or order given, passed or made under the Regulation. Section 3 of the Regulation bars reference of a dispute and adjudication under the Regulation if the interest of a minor is involved in the case.
However, in the instant case when at the time of reference and adjudiction no such infirmity existed the objection raised has got no force. The reference and adjudication being competent, the opinion given by the Tribunal and the decree passed in pursuance thereof is a matter closed as far as jurisdiction of trial of the dispute under the Regulation is concerned. Such being the case the judgment and decree passed by the Deputy Commissioner under the Regulation affirmed by the appellate authority could have been interfered with only on the grounds and within the scope of revisoinal jurisdiction under the Regulation and not on extraneous matters.
5. It would be advantageous to reproduce the revisional order as under:-- "It came to the notice of the Court that Abdul Hakim petitioner has expired and has been survived by minor sons. In view of the fact that interest of minor have been introduced into the case, the jurisdiction of this Court under section 3 subsection (2)(a) of PATA Civil Procedure (S.P.) Regulation, 1975 is ousted and the plaint has to be returned to the petitioner for presentation to the proper Court.
' In view of the above the revision petition having become infructuous is dismissed and the party feeling aggrieved is directed to seek remedy in a proper Court of law."
The order reproduced above apart from being illegal is ambiguous and self-contradictory when both the orders i.e, the one passed by the Deputy Commissioner and the other by Addl: Commissioner have been passed with jurisdiction and the legal representatives of the deceased petitioner have been brought on revisional file, it cannot be said that the revision petition has become infructuous on the death of one of the parties survived by a minor child. Furthermore, unless the judgment, decree and order of the forum below, impugned in revision, are set aside no order for the return of plaint could be passed. The dismissal of the revision petition, as having become infructuous, in substance would keep alive the judgment, decree and order of the forum below in the field and return of plaint could not be ordered.
' For the reasons stated above, we would accept this writ petition and declare the order of respondent No,1 illegal and without lawful authority and set aside the same. As no decision on merits has been given, we would, therefore, send back the case to respondent No,1 for decision afresh in accordance with law. I Parties are left to bear their own costs.