' SALEEM AKHTAR, J.---This appeal with leave is directed against the judgment of the learned Judges of the High Court, whereby Constitution Petition filed by the respondents against the orders passed by respondents Nos.8 to 11 was dismissed.
2. The brief facts are that respondents Gul Baran, Haider Khan and Baz Muhammad had filed suit against Haji Akbar son of Valham before the Assistant Commissioner, Chairman exercising powers of a Deputy Commissioner under the provisions of Civil Law (Special Provisions) Ordinance (I of 1968) (hereinafter, referred to as the Ordinance), praying for declaration, possession and correction of entries in the records. In the plaint the address of appellant No,1 was given as Kili Mulla Alam Akhund, Kandhar City, Afghanistan. The Assistant Commissioner ordered for issuance of notice through publication in "Daily Mashriq", Quetta. It may be pointed out that the address of appellant No,1 given in the newspaper was different from that given in the plaint. The proclamation was published in the said newspaper and as appellant No,1 did not appear, the Assistant Commissioner proceeded ex parte and referred the matter to the Tribunal which made its award on 31-10-1978.
The Tribunal proceeded with the case ex parte and submitted its opinion with which the Assistant Commissioner agreed and decreed the suit directing for the correction of entire in favor of respondent No, 1 . Consequently, mutations were entered in favor of all the three plaintiffs.
Respondents Nos.1 to 3 in whose favor entries had been made sold the disputed land to Fateh Khan, respondent No,4. The appellants on coming to know about the judgment, filed appeal in October 1987. An application for condoning the delay was also filed. The Additional Commissioner dismissed the appeal holding that it was barred by time. The appellants then filed revision application before the Member, Board of Revenue which was dismissed by order dated 2-10-1989.
The appellants then filed Constitution Petition in the High Court which was dismissed by the impugned judgment.
3. Leave to appeal was granted to the appellants as follows:-- "Leave to appeal is granted to examine whether the substituted service effected by publication of notice in local newspaper was due service according to law in view of the fact that--
(i) personal service was at no stage attempted;
(ii) thQ, address in the newspaper notice is different from that given in the plaint."
4. Mr. Muhammad Aslam Chishti learned ASC for the appellants contended that at no stage the appellants were heard and no proper and valid notice was served. It may be pointed out that the suit was filed against appellant No,1 but the rest of the appellants joined the array in appeal.
Therefore, the main question for consideration would be whether appellant No,1 was duly served as required by law. Mr. Tahir Mehmood Khan learned ASC for the private respondents contended that provisions of the Code of Civil Procedure and the Evidence Act are not applicable in proceedings before the Tribunal. The learned counsel has referred to sections 3, 4 and 8 of the Ordinance and contended that it was for the Assistant Commissioner and Tribunal to decide the manner in which service was to be effected and as publication had been made which has been considered and decided by all the forums as valid and proper, there was no illegality and the service should be held as valid and proper. The admitted fact is that suit was filed against appellant No,1 and he was shown to be resident of Kandhar City. There is nothing on record or in the orders of any of the authorities that the Assistant Commissioner had made any attempt to serve appellant No,1 by any other mode of service except by publication of notice in a local newspaper. Section 3 (2) of the Ordinance excludes that applicability of Evidence Act and Code of Civil Procedure to any proceeding under the Ordinance. Section 8 provides for procedure before the Tribunal which reads as follows:-- "8. Procedure before the Tribunal.--(1) For the purpose of coming to a finding on a matter or issue referred to it, the Tribunal shall give opportunity to the parties to appear before it and take or hear, in such manner as it may think fit, such evidence as may be adduced on behalf of the parties or as may be called for by the Tribunal: Provided that the ,Tribunal may in its discretion refuse to take or hear any evidence which in its opinion is being tendered for the purpose of vexation or delay or for defeating the ends of justice: Provided further that the provisions of sections 121 to 126 of the Evidence Act, 1872 (I of 1872), shall apply to any proceedings before a Tribunal as they apply to proceedings before a Judge or a Magistrate.
(2) The Tribunal shall give the parties an opportunity of cross-examining the witnesses deposing against them.
(3) The Tribunal may administer oath to a witness in such form or manner, consistently with the religion of the witness, as it deems fit."
5. Section 9 of the Ordinance confers limited powers on the Tribunal to have the same powers as are vested in the Civil Court trying a suit under the Code of Civil Procedure in respect of enforcing attendance of any witness or production of any document or other thing. The stages provided for trial of the suit are that first it is filed before the Deputy Commissioner, who refers it to the Tribunal, the Tribunal then records the evidence of the parties and under section 10 it is required to give its finding on matter or issue referred to it under section 4 in accordance with law or the customs and usage having the force of law which shall be submitted to the Deputy Commissioner in the form of a report containing reasons of such finding. On receipt of such report, the Deputy Commissioner may accept it, remand or constitute another Tribunal for rehearing. The Deputy Commissioner is the sole authority for accepting or rejecting the findings of the Tribunal. For analysis of the Ordinance, reference can be made to Government of Balochistan v. Azizullah Memon (PLD 1993 Supreme Court 341).
6. Under the Ordinance, the Deputy Commissioner has first to consider the matter after giving notice to the other side and then refer it to the Tribunal which has to hear it on merits. At both the stages, the opposite-party should be notified of the hearing. The Deputy Commissioner got the notice published in the newspaper but the Tribunal did not issue any notice. In the absence of applicability of Order V, Rule 20, C.P.C. Its principles may be adopted according to the facts and circumstances of the case in order to do justice and to decide the case in accordance with law.
The pre-conditions for a substituted service as required by Code of Civil Procedure may not be strictly made applicable but publication should be made only after satisfaction that the defendant cannot be served personally or by post or that he is avoiding service. In the present case as personal service could not be effected, the notice could be sent through post as postal service which was operating between Pakistan and Afghanistan. No such step was taken. When any Authority or Tribunal is empowered to decide a case involving rights of the parties, it exercises quasi-judicial power and the principles of justice which are inherent in deciding the disputes between the parties should be followed. If the procedure and mode of service is left to the discretion of such authority, then it should be exercised in a proper and judicious manner keeping in view that opportunity has to be given to the parties to enable them to defend the case.
Straightaway publication of a notice in a local newspaper as in this case could hardly be termed as a proper service and notice to the parties. To begin with, the Deputy Commissioner did not exercise the discretion and power vested in him in a judicious manner. It was arbitrarily exercised without considering that service of notice is vital for initiating the proCeedings. Even if for argument sake, the notice by publication as in the present case is taken to be proper and legal (which is not the case here), the Tribunal was bound to issue notice to defendant No,1, but it proceeded without taking any such step. Under section 8(1), the Tribunal before coming to a finding on matter referred to it is bound to give opportunity to the parties to appear before it and hear the case in such manner as it may think fit. Therefore, it is mandatory that the parties Shield be given opportunity so that they may appear before the Tribunal. It is after that, that the Tribunal may decide the manner in which ij may hear the case and record the evidence. This provision also enshrines the principle that the party should not be heard without notice. Admittedly the Tribunal did not issue any notice to defendant No,1 and, therefore, all the proceedings taken were not proper and legal.
7. The learned counsel for the respondents relying on PLD 1983 Quetta 53 (Mir Rehman Khan and another v. Sardar Asadullah Khan and others) contended that the Tribunal is not a Court. It does not mean that the Tribunal is not bound by the provisions of law under which it acts or to follow the principles of justice and equity which are inherent in the administration of justice.
8. The learned counsel for the respondent contended that Akbar had not appeared and that he has no interest in the property in dispute. The fact remains that respondents Nos.1 to 3 had filed suit against Akbar and, therefore, it was incumbent that he should have been heard. The question whether he has any right in the property in dispute or not is to be decided by the Court of competent jurisdiction and not at this stage. As regards appearance, from the record it seems that appellant No,1 did appear personally and he was represented by an attorney as well.
9. The learned counsel for the respondents then contended that respondents Nos.4 to 7 had purchased the property, planted gardens and thousands of apple trees and have also installed tube wells. According to the learned Counsel, they have spent Rs,23. Laces and in these circumstances if the appeal is allowed, serious loss will be caused to them who are bona fide purchasers in good faith for valuable consideration. These are questions to be decided by the trial Court and not at this stage. During argument it was pointed out that one Noor Muhammad had appeared and he being appellant No,11, all the appellants who belong to same tribe should be presumed to have notice of the proceedings. Mr. Muhammad Aslam Chishti, learned counsel for the petitioners had referred to pages 73 and 74 of the paper-book from which it is clear that the person who had filed an application in respect of a second award of the Tribunal was Noor Muhammad son of Mehmood, whereas Noor Muhammad, who is appellant No, 11 is son of Khair Muhammad. The similarity of names had caused contusion due to which the learned Judges had made the observation. We, therefore, allow the appeal, set aside the impugned judgment and also the judgments/orders of the Tribunal and Deputy Commissioner. The case is remanded to the Court of Civil Judge/Qazi having territorial jurisdiction of fresh decision on merits. Parties to bear their own costs.