' Z. A. CHANNA , J.-The dispute in this constant rational petite relates to grant of agricultural land, having an area of 23-17 acres, in Deh Sadri, Taluka Hala, District Hyderabad, and arises In the following circumstances.
2. It appears that on 25-10-1955 respondent No, 4, Mohammad Moosa, recorded an offer for the grant to him of the said land. The offer was not accepted on the ground that it was not available for disposal. On 28-11-1959, the petitioner recorded an offer in respect of the same land, which offer of his was accepted and necessary Ijazatnama issued to him. It appears that even possession of the land was delivered to him. Respondent No, 4 preferred an appeal to the Colonization Officer against the grant of land to the petitioner, but the appeal was dismissed. He, thereafter, filed a revision petition to the Additional Commissioner, Hyderabad, which also was unsuccessful.
Undeterred by these objections, respondent No, 4 preferred a second revision petition to the Board of Revenue, which was heard by a single Member, Mr. A. M. Khan Lehar. He took the view that on the one hand the petitioner was not of the Hari class, being a business man and a hotel owner, and that on the other hand respondent No, 4 equally was above the Hari class, since he owned 5 acres of land and additionally had been gifted further land having an area of 23 acres. In the view of the matter that he took, he directed that the land in dispute should be disposed of by a restricted auction between the petitioner and respondent No,
4. Respondent No, 4 was not satisfied with this decision and preferred a review petition, which was heard by Mr. Abu Nasar, who was then a Member of the Board of Revenue. Mr. Abu Nasar held that respondent No, 4 was a Hari, since he owned only 15 acres of land, which had been gifted to him. He also relied for this view on entries in the Field Book showing respondent No, 1 as a Hari of certain survey numbers. He, accordingly, considered that respondent No, 4 had a preferential claim over the land in dispute, especially as he had recorded the first offer in respect of it and accordingly directed that the land in dispute be granted to this respondent. The petitioner thereupon filed a civil suit in the Civil Court in Karachi, impugning the order passed in review by Mr. Abu Nasar, but his plaint was rejected by the civil Court under Order VII, rule 11, on the ground that the civil Court had no jurisdiction in matters of grant of land. In coming to this decision, the civil Judge relied upon two decisions of this Court reported in PLD 1960 Kar. 998 and PLD 1963 Kar.
215. The petitioner, thereupon, filed the present constitutional petition to challenge the orders passed in review by Mr. Abu Nasar but his plaint was rejected by the civil Court under Order VII, rule 11, on the ground that the civil Court has no jurisdiction in matters of grant of land. In coming to this decision, the Civil Judge relied upon two decisions of this Court reported in PLD 1960 Kar. 908, and PLD 1963 Kar.
215. The petitioner, thereupon, filed the present constitutional petition to challenge the orders passed in review by Mr. Abu Nasar.
3. We have heard Mr. Rehanul Hassan Farooqui on behalf of the petitioner but we have not had the benefit of the arguments of Mr. Ahmed Muhammad Kazi, the learned counsel for the contesting respondent No, 4, as he has remained absent.
4. Before we consider the submissions of the learned counsel for the petitioner, we would consider the effect of the rejection of the plaint filed by the petitioner to impugn the order passed in review by the Member Board of, Revenue, Mr. Abu Nasar. Although the rejection of a plaint is deemed to be a decree, as provided in section 2(2) of the Code of Civil Procedure, 1908, in such a case there is no adjudication of the rights of parties. In Kaniz Fatima v. Member, Board of Revenue (1) a suit was filed by certain persons, claiming to be the heirs of N, against the admitted heirs of N. The plaint, however, was rejected. At the same time mutation proceedings were initiated and mutation of inheritance effected in favors of the admitted heirs of N. The persons who had filed the suit against the heirs challenged the impugned order in appeal and thereafter in revision. The Additional Commissioner in revision remanded the case for fresh decision after hearing both the contesting parties. It was contended before their Lordships of the Lahore High Court that the remand order for deciding the mutation of inheritance afresh was illegal as the rejection of the plaint of the persons who were contesting the mutations amounted to a decree which should have been given affect to by the Revenue Authorities independent of any further evidence in this respect. Repelling this contention, Sardar Muhammad Igbal, J. (as he then was), observed as follows :- "Since the fresh suit can be filed after the rejection of plaint, the principle of res judicata is manifestly not applicable as there is no adjudication in a case where plaint is rejected. The position of law is that whereas the rejection of a plaint takes away the very basis of the suit tendering as it were that no suit was filed at all, the dismissal of a suit while recognising the existence of the suit indicates its termination. The decision of the Court under Order VII, rule 11 rejecting the plaint is not on merits, because the suit in such a case virtually does not come before the Court for the disposal on merits but falls out for the reason that preliminary steps to present the suit before the Court properly and effectively were not taken by the plaintiff."
' We are in respectful agreement with the view taken in the above reported case and consider that the rejection of the petitioner's plaint in the civil suit has no effect on the present filed by him.
5. Mr. Rehanul Hasan Farooqui has assailed the order passed in review by Mr. Abu Nasar on the grounds :-
(I) that the power of review under the West Pakistan Board of Revenue Act, 1957, which has now been re-named as the Sind Board of Revenne
(1) PLD 1973 Lah. 494 ' Act, 1957, is available only to the Board of Revenue as such and be exercised by a single Member ;
(ii) that even if it be assumed that a single Member could exercise the power of review, Mr. Abu Nasar has exceeded the powers exerciseable on review, in coming to a different conclusion from t is predecessor on the same set of facts.
6. In support of his first contention Mr. Rehanul Hassan Farooqui pointed out that the Sind Board of Revenue' Act, 1957, makes a clear distinction between 'Board of Revenue' and a 'Member, Board of Revenue' and that under section 8 of the said Act, the powers of review are only available to the Board itself and that too in respect of orders passed by the Board itself. This contention of the learned Advocate overlooks the provisions of section 42) of the said Act, which expressly provide that any order made or a decree passed by a Member shall be deemed to be the order or decree of the Board. As such, both the order passed by Mr. Leghari as well as the order passed by Mr. Abu Nasar would be orders of the Board of Revenue. It is true that under section 7(2) of the said Act, a revision petition lies under certain circumstances from an order made or decree passed by a Member to the full Board, which is to consist of not less than two Members of the Board of Revenue, but the powers of review under section 2 of the said Act have been conferred on the Board of Revenue, which powers, as we have shown, can be exercised by a single Member of the Board of Revenue.
7. In order to appreciate the second contention of Mr. Rehanul Hasan Farooqui, we may refer to section 8 of the Sind Board of Revenue Act, 1957, subsection (1) whereof reads as follows :- "8. (1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby after hearing them, pass such decree or order as the circumstances of the case require."
8. It will be seen that the grounds on which an order or decree may be reviewed under the aforesaid provisions are identical with the grounds on which a decree or order may be reviewed under Order XLVII, rule 1, Code of Civil Procedure, 1908. The three grounds on which alone review is permissible under either of the aforesaid laws are ; (1) discovery of new and important matter or evidence, not within the knowledge of the person applying for review, (2) mistake or error apparent on the face of the record, and (3) for any other sufficient reason. In the case reported in AIR 1912 P C 112 their Lordships of the Privy Council interpreted the words "any other sufficient reason" occurring in Order XLVII, rule 1, C. P. C. "as meaning a reason sufficient on grounds at least analogous to those specified immediately previously." So far as the second ground is concerned, namely mistake or error on the face of the record, such mistake may be one of law or fact.
9. It was contended by Mr. Rehanul Hasan Baroque that one of the above grounds for exercise of the powers of review were present in the Instant case and that Mr. Abu Nasar reviewed and set aside the orders of his predecessor, Mr. Leghttn, on the same set of facts by re-appraising the evidence, which he was not competent to do. Additionally, he contended that such re-appraisal was even otherwise incorrect as it was based on misconstruction of evidence. We are, however, not impressed by these submissions. The finding of Mr. Lehar which was reviewed by Mr. Abu Nasar was that respondent No, 4 was above the landless hari's status. The question of the respective status of the petitioner and respondent No, 4 was important in view of' the instructions contained in Sind Government's letter, R. D No, P-24.F/50., dated the 7th February 1951, which lays down that when there are more offers for the same land, "in case of inequality of status, e.g., when a small Khatedar or Hari and a man of good means apply for a particular piece of land and if that piece is near about the village in which such Khatedar or Hari resides or such Khatedar or Hari has no other land except the land applied for, it should be given to the small Khatedar or Hari at the prescribed rates of Malkana without resorting to auction". Mr. Leghari, in his order, had accepted the reports of the Colonization Officer and the Deputy Commissioner that respondent No, 4 owned only 5-32 acres of land, which he had inherited from his father. Mr. Laghari, however, also relied upon the admission of respondent No, 4 that he had been gifted 28-10 acres of land in 1963. The error apparent on the face of Mr. Lehar's order lies in the fact that the status of respondent No, 4 should have been considered as existing on 2540-1955. When he recorded the offer for the disputed land, or in any case on 28-11-1959, when E the said land was available for disposal and an offer for it was recorded by the petitioner. The subsequent acquisition by respondent No, 4 of any land should not have been taken into consideration for the purposes of determining his status at the material time. The error apparent on the face of Mr. Leghari's order does not end here. In considering the status of respondent No, 4, he even took into consideration area of the disputed land (as if it was owned by respondent No, 4, and it was mainly by reason of adding this area to the land owned by respondent No, 4, that he held that respondent No, 4 was above the landless Hari status. It may also be pointed out that what the learned Member Board of Revenue was required to determine, in accordance with the said Government's letter of 7th February 1951, was not whether respondent No, 4 was of the 'landless Hari class', but whether he was a Hari or a small Khatedar. Obviously, if the subsequent gift of land to respondent No, 4 as also the disputed land are excluded, respondent No, 4 would not be above the small Khatedar status, since be owned, at the relevant time, only 5 acres of land.
10. We may also point out that the petitioner has approached this Court in the exercise of its constitutional jurisdiction and this petition can only succeed if it is established that the impugned order is without lawful authority and is of no legal effect. It is now well settled that it is only the acts without jurisdiction which have no legal effect and are void. The mere fact that a Tribunal takes an erroneous view on law or facts or acts illegally or with material irregularity in the exercise of its jurisdiction, its order cannot G be considered to be of no legal effect and thus cannot bs set aside by the] High Court in the exercise of its constitutional jurisdiction. Dealing with the scope of writ jurisdiction under Article 98 of the 1962 Constitution, which Article was practically identical with Article 199 of the present Constitution, their Lordships of the Supreme Court, in the case reported as Muhammad Hussain v. Sikandar (1), in which case also an order passed by the Board of Revenue was assailed, observed as follows "It is not controverted that the matter before the learned Single Judge fell to be dealt with under paragraph (II) of sub-clause (a) of clause (0, Article 98 of the 1962 Constitution. That being so, the learned Judge could have set aside the order, if he had reached the conclusion that the provisional order of the learned Member, Board of Revenue was "without lawful authority and of no legal effect." These are expressions of art and refer to jurisdictional defects as distinguished from mere erroneous decisions whether on a question of fact or even of law It is well settled that where a Court or a Tribunal has jurisdiction and it determine that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law The High Court's supervisory jurisdiction under Article 98 (2) (a) (ii) of the 1962 Constitution (or for that matter under Article 199 (1) (a) (II) of the present Constitution) having regard to its nature or content is assailable to its jurisdiction under section 115, Civil Procedure Code except in two important respects : first ; the former jurisdiction being a creation of the Constitution stands on a higher pedestal than that under section 115, C. P. C., second ; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercise-able in a full-fledged appeal, which plainly is not the intention of the Constitution-makers."
11. In the instant case, we have already shown, Mr. Abu Nasar, did have jurisdiction and the power to review the orders of his predecessor, Mr. Leghari. The orders of Mr. Abu Nasar thus do not suffer from any jurisdictional error. As such, even if it had been established (which, however, has not been done by the petitioner), that the orders of Mr. Abu Nasar were based on wrong view of law or an incorrect appreciation of facts, no case would be made out for setting aside his orders in the exercise of the constitutional jurisdiction of this Court.
12. For the reasons stated by us above, we are of the opinion that the petition has no merit. We, accordingly, dismiss the same, but in view of the fact that the learned Advocate for the contesting respondent No, 4 has failed to appear at the hearing of the case, we would award no costs.
(1) PLD 1974 SC 139