' The petitioners filed a partition suit before Extra-Assistant Commissioner, Mirpur and obtained a stay order that no part of the suit land will be alienated. It is submitted by Mr. Muhammad Yunus Arvi that on 22nd of November when his clients were not present Extra-Assistant Commissioner accepted an application filed by the respondent and dismissed the suit on the ground that civil suits about title were pending about the land sought to be partitioned.
2. The petitioners did not file an appeal, the maintainability of which is admitted, but filed a writ petition. The petition has been dismissed on the ground that adequate remedy by way of appeal has not been availed.
3. It is contended by Mr. Muhammad Yunus Arvi that a direct writ was maintainable because the order passed by the Revenue Officer was without jurisdiction because--
(i) the order was bad as it was passed in absence of the petitioners; and
(ii) if at all, the officer could, in terms of section 141(3) of the Land Revenue Act, suspend further action and could dismiss the suit.
4. Reliance is placed on Ghulam Muhammad v. Munir Ahmad Shah (1994 CLC 14), Tawakal Khan v.
Dana Akhtar (1994 CLC 182) and Muhammad Akram v. Sikandar (1994 CLC 185).
5. The learned counsel for Muhammad Bostan who has filed a caveat, opposed the grant of leave.
6. Firstly we may observe that it is not clear from the documents filed with the petition as to what was the nature of absence of the petitioners on the date on which the impugned order was passed by the Revenue Officer. It is stated in the order that nobody is present on behalf of the plaintiff. If it was a date fixed during progress of the case, the petitioners cannot complain that an order was passed in their absence because in that case they have to suffer for their absence. It is also not clear whether the application moved by respondent Bostan, which was accepted by the Revenue Officer through impugned order, had not been filed in presence of the petitioners. If it was so it was duty of the petitioners to bring it on the record of this Court that application was moved on a day which was not a date of hearing and thus the petitioners were proceeded against ex parte. We also note that it is not entirely correct to say that Revenue Officer dismissed the suit. In the order of 22nd of November, 1993, the operative part is as follows:-- "Therefore, the file is adjourned and is consigned to the record room. Order announced. Parties may get the land partitioned after the decision by the Civil Court."
7. The High Court has observed that it cannot be termed that the order is without jurisdiction. On the present record it is not possible to disagree with the High Court. The case cited by Ch. Muhammad Riaz Alam, namely, Muhammad Ismail v. Income Tax Officer (1993 SCR 370) supports him. It was held that there is a distinction between total absence of jurisdiction and violation of Law.
8. Even if the contention of Mr. Muhammad Yunus Arvi is accepted a writ petition would still be incompetent. This Court has held in Abdul Rehman v. Income Tax Officer (1993 SCR 186) that existence of an adequate remedy is a rule of law barring jurisdiction of the Court and it is not regulatory in nature. It was also held that the High Court can only entertain a writ petition if it finds that alternative remedy is not adequate. We may reproduce the following:-- "The same phraseology was transposed to Article 199 of the Constitution of Pakistan, 1973 and was subsequently borrowed while enacting section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The provision for making an order is preceded by the recital that such an order may be made 'if the High Court is satisfied that no other adequate remedy is provided by law'. Since this condition is now incorporated in the Constitution it cannot be said any longer that it is not a rule of law barring jurisdiction of the Court and is only a rule by which the Court regulates the exercise of its own jurisdiction as was held by the Supreme Court of Pakistan in Amir Muhammad Khan's case in light of the phraseology of Article 170 of the 1956 Constitution. It is, therefore, difficult to agree in light of the prevalent Constitutional provisions that if an interpretation placed by an executive authority is palpably wrong and leads to miscarriage of justice the High Court can directly entertain a writ petition. The High Court can only directly entertain a writ petition if it finds that alternate remedy is not adequate. In our view existence of another adequate remedy is a rule of law which ousts the jurisdiction of the High Court and we hold accordingly."
' Consequently the petition has no force and is dismissed.