ABDUL HAYEE KURESHI , ACTG. C. J.-This petition under Article 199 of the Constitution has been filed by Ghulam Sarwar son of Peer Gul on the following facts I-
2. Lal Mohammad the grandfather of the petitioner and Bor Mohammad, the brother of Lal Mohammad were mortgagees in possession of agricultural land bearing Khasra Nos. 135 and 136 admeasuring 4 rod-10 poles in Mahal Lor Koa Mauza Zanki. While Annexure 'A' produced by the petitioner is the certified copy of the extract from the record of rights relating to 1917-18, Annexure 'B' is the record of rights for the year 1941---45 in respect of the same land but which as a result of re- survey has been differently numbered.
3. The petitioner has act up a case that his father died when he was still a young boy and therefore his uterine brother Raz Mohammad looked after the land. The said Raz Mohammad sold the land of the petitioner for a sum of Rs. 400 in favour of respondents Murad Khan and Burhan. The petitioner has further stated that in 1970 he insisted on respondents Burhan and Murad Khan as well as Gul Mir. Sheerin and Bea Khan (not impleaded as respondent) to return the land to the petitioner but on their refusal the petitioner filed a suit before the Assistant Commissioner Pishin and in accordance with the provisions of Civil Law (Special Provisions) Ordinance 1 of 1968, which for the sake of convenience and brevity is herein. After referred to as "the Ordinance". The suit was for declaration and the documents produced before us in Court do not indicate if any consequential relief was claimed by the petitioner. The respondents contested the suit and filed written statements wherein they raised dual plea. It was firstly averred that the suit was barred by the law of limitation and secondly that the petitioner had himself sold his interest in the land in their favour and obtained a sum of Re. 490. The suit was referred by the Assistant Com--missioner to a tribunal which was presided over by Tehsildar, Piahin and was composed of four other members. By an award dated November 15, 1971 the tribunal dismissed the suit on the ground that it was barred by time as also on the ground that the petitioner had sold the land in question and received the price.
The award of the tribunal was confirmed by the Assistant Commissioner of Pishin who on factual and legal ground agreed with the tribunal. The petitioner thereafter filed an appeal under section 11 of the Ordinance before the Commissioner of Quetta Division and the same was also dismissed on the ground that the suit of the petitioner was time barred. The petitioner thereafter filed a revision application under section 12 of tie Ordinance which was heard by Mr. Fateh Khan Khajak, a member of the Provincial Board of Revenue. The learned member also dismissed the revision application both on the grounds that the suit was barred by time u well as on merits.
The petitioner has thereafter invoked the constitutional jurisdiction of this Court. While the petitioner was represented before us by Mr. S. H. Jaf4 respondents Burhan and Murad Khan were represented by Mr. Munawar Ahmed Mirza. The Member Board of Revenue, the Commissioner of Quetta Division and the Assistant Commissioner of Pishin have not defended the petition.
4. The learned Advocate for the petitioner has raised two questions before us, namely (1) the question of the suit being barred by time could be considered only by the Assistant Commissioner who is a referring authority and since the Assistant Commissioner had referred the case to the tribunal the question of the suit being within time could not be reopened or considered by the other statutory authorities including the tribunal, and (2) that on merits the petitioner was the owner of the land and the suit was wrongly dismissed.
5. In regard to the point of limitation Mr. S. H. Jafri has relied on the provisions of subsection (2) of section 4 of the Ordinance which reads as follows :- "A dispute shall not be referred to a Tribunal if a civil suit in respect thereof would be barred by the provisions of the Limitation Act, 1908 (IX of 1908.)
The contention of Mr. S. H. Jafri is that it being provided that a civil Edit appearing to be barred by time could not be referred to the tribunal, and in the instant case a suit having been referred to the tribunal would mean and imply that the suit was within time and therefore maintainable. On the other hand Mr. Munawar Ahmed Mirza bas contended before us that subsection (2) of section 4 of tire Ordinance was not in the nature of a complete bar, that the Assistant Commissioner had got recorded a finding before referring the suit to the tribunal that the same was within time, that the Assiktant Commissioner has in any case after obtaining the report of the tribunal recorded a finding that the suit was barred by time that the plea of the respondents in regard to the suit being time barred has also been upheld by the Commissioner who is the appellate authority and such Commissioner by virtue of subsection (3) of section 11 of the Ordinance can exercise all the powers of an appellate C4ort as are conferred by Code of Civil Procedure, and lastly that the error, if any, committed by the Assistant Commissioner was liable to rectification by the appellate and the revisional authority. In addition Mr. Munawar Ahmed Mirza have contended before us that a writ of certiorari cannot be given in a case of this nature.
6. The first question that we propose to examine is whether the suit was in fact time bared. The respondents have consistently taken this plea and the Assistant Commissioner, the Commissioner and the learned Member Board of Revenue have adverted to this aspect of the case and recorded concurrent findings that the suit was time barred. On examination of the record of rights relating to the year 1941-45, we find that the name of Lal Mohammad or Bor Mohammad through whom the petitioner claim find no mention therein. The names of Gul Moharnmad the father cal respondents Burhan and Murad Khan appears on the record. This circumstances stance conclusively shows that as early as in 1941 or rat least in 1945 the interest of the grand father of the petitioner in the land in question wet extinguished. The petitioner in such circumstance has to account for a delay of 27 years in the filing of the suit &,cause the suit wtis filed sometime in 1972. The petitioner has act up a case that he was an infant when his father died and thereafter he used to live in different villages with his mother and on attaining puberty he had gone to Sind to eke out his livelihood On the other hand the tribunal that recorded evidence arrived atfindings, of fact that the land was sold by the uterine brother of the petitioner and the petitioner thereafter recovered the price of the land even from the respondents so that he shall be deemed to be acquiesced in the disposal of the )and. Such findings of fact have also not been displaced by the Commissioner in appeal or tire Mcmber, Board of Revenue in revision.
We have also not been persuaded to take a different view more so, because the findings of fact recorded by the tribunal cannot be lightly displaced by this Court in exercise of restricted jurisdiction of this Court under Article 199 of the Constitution.
7. In regard to the suit being barred by time the tribunal recorded a finding that in 1971 the petitioner appeared to be aged over 40 years. That would show that tae petitioner had attained the age of 21 years in early fifties. The Commissioner took the petitioner at his words that in 1941 (when the mutation of land was carried out) he was aged two years but even then the petitioner had attained majority by 1958 and therefore, the suit was barred by time. The learned Member Board of Revenue also agreed with the Commissioner on such computation of the age of the petitioner. On consideration of all these circumstances we cannot but hold that the petitioner did acquire majority at least 13 or 14 years before the filing of the suit and for such reason the suit was barred by time.
8. We now proceed to examine the main contention of Mr. S. H. Jafri which is based on subsection
(2) of section 4 of the ordinance. Under this provision it would on a first impression appear that if a civil suit was barred by time the suit cannot be referred to the tribunal. Interpreting conversely Mr. S. H. Jafri has contended that the fact of the suit having been referred to the tribunal is a positive proof of the fact that the same was within time. Mr. S. H. Jafri then wishes us to conclude that the Assistant Commissioner, who is a referring authority having held the suit within time no of other authority under the Ordinance can enter into that Question. In our view the argument besides being fanciful is also opposed to all canons of Justice. In the present cage, even if it is assumed that the power of determination whether a suit is filed within time vests only in the Assistant Commissioner, it cannot be overlooked-that the same statutory functionary on getting the decision! Of the tribunal to the effect of the suit being barred by time, has not only agreed with the tribunal but has also recorded a finding himself that the suit was barred by time. It would thus ap.- car that what the Assistant Commissioner may well have done before making the reference he has done after obtaining the decision of the tribunal. We have given our anxious consideration to this aspect of the case and a situation that has passed our mind can best be stated as an illustration. If in a case based on a pronote, a mutilation is made with a view to show that the suit based on such pro note was within time and further if the tribunal which is the judge of facts, comes to the conclusion that the pronote had been deliberately mutilated in order to bring the suit within time and the tribunal was to decide the question on that ground, would it be just or proper for authority to still decree the suit on the basis of such forged pro--note. It seems that would be a manifest failure of justice and we do not see how Subsection (2) of section 4 would create such au absolute bar that no statutory functionary can re-open the question of limitation again.
On the other hand, section 11 of the Ordinance provides Er an appeal at the instance of an aggrieved party by reason of any decision, decree or order made by the referring authority under this Ordinance.
The provision is so broad that if the Assistant Commissioner had decided to refuse reference to the tribunal such decision could have been appealed against by the petitioner/plaintiff. Now if that is so there appears to be no good reason for the appellate authority under section .11 , of the Ordinance refraining from entering into the question of limitation solely by reason of the Assistant Commissioner having not decided the point. In such context it is also profitable to refer to subsection (3) of section 11 of the Ordinance which provides that the appellate authority while deciding an appeal may exorcise all or any of the powers conferred on an appellate Court by the Code of Civil Procedure. It can never be said that an appellate Court by virtue of powers under the Code of Civil Procedure is debarred from entering into the question of the suit being without time or barred by time. Similarly under section 12 of the ordinance the revisional authority has also got the powers to examine the record for the purpose of satisfying itself as to the correctness, legality of propriety of any decision or decree or order passed or made under the Ordinance. It can never be said with any confidence that examination of the record with a view to determine the question of the suit being within time is not covered by section 12 of the Ordinance.
9. It will also be proper to examine the provisions of "Dasturul Amal Diwani" Kalat, which is a cognate law to this Ordinance. Under section 7 of the Dastur, the Hakim-a-Adalat would on the basis of pleadings refer a cue to a tribunal after framing issues. In the case of Rats Dur Muhammad and another v. Takart Abdul Hamid and 8 others (PLD 1971 Quotta 93). The provision of section 7 in regard to framing of the issues were not complied with the Kazl to whom the case was referred to for decision discovering such an omission framed issues. A point was raised before the Division Bench that such action of the Kazi has vitiated the trial and the Division Bench held that the requirement of section 7 in regard to framing of issues was not mandatory and the non- compliance with the same did not vitiate the trial. In the present case the argument of the respondent would stand on a higher pedestal because the Assistant Commissioner after receipt of the decisions of the tribunal has himself conceded the point of the suit being barred by time, and records that the same was barred by time. We may also refer to a Single Judge decision in the case of Fatz Muhammad and 2 others v. Muhammad Shartf and 7 others (PLD 1956 QuetA 23). In this case the learned Single Judge of the erst--while High Court of Sind & Baluchistan was considering the question of reference of suits which are barred by the provisions of Limitation Act.
The suit was resisted on the plea of adverse possession. The averments in the application did riot disclose that the suit was barred by time and the learned Single Judge also observed that adverse possession was essentially a question of fact and requiring an exercise in the nature of computation of time. The learned Single Judge held that since an issue on the plea of adverse possession was necessary, the referring authority should have framed an issue on such point and then referred the case to the tribunal so that the tribunal could take a decision. No boubt the case was one of adverse possession but the very concept of adverse possession complies a passage of time and such is the position almost in every case where a suit being maintainable car not depends upon a determination as to the date on which the cause of action has arisen.
10. On giving our anxious consideration to the provisions of sub--section (2) of section 4 of the Ordinance we are of the view that this sub--section neither creates a bar on the statutory function arises under the Ordinance to enter upon the determination of question of limitation nor does the absence of initial determination as to the suit being within time `' or beyond time preclude the Assistant Commissioner from considering the question of application of Limitation Act at a stage later than the stage of making reference to the tribunal. We are also of the view that the provisions are of a directory nature and not mandatory. We are also o the view that the mere fact of the Assistant Commissioner making a reference without adverting to the question of bar by reason of Limitation Act does neither extend the limitation nor confer maintainability on a suit which is In fact not maintainable. We are also of the view that the other statutoryl functionaries under the Ordinance can enter into the question of the suit being within time.
11. Mr. Munawar Ahmed Mirza learned counsel for !He respondent/ also raised the point that the present case was not one in which a writ of certiorari could be granted. The point has also been resisted by Mr. S. H. JaM who has relied on a Division Bench judgment in the case of Muhammad Naziruddin v. Rehabilitation Commissioner. Hyderabad and 6 other: (PLD 1964 Kar. 450).
Mr. S. H. Jafri has invited our attention to a passage appearing at p. 457 of the report which reads as follows: "The primary consideration ouch cases is whether the impugned order was passed in accordance with law or not. Once the Court comes to the conclusion that it is passed in utter disregard of the law applicable and the conduct of the aggrieved party is not found to be objectionable, the rule of law is that a writ of certiorari will issue."
Mr. S. H. Jafri has further stated before us that a writ of certiorari is a writ of correction and has to be granted ex debitio justitia in all such cases where the letter of the law has not been complied with.
We are afraid that is not the only consideration on which a writ of certiorari would issue. Such writs are primarily aimed to cure absence or excess of jurisdiction, violation of principles of justice and error in exercise of jurisdiction which are apparent from the face of the record. The scope of certiorari was recently examined by Hamoodur Rehman, C.
1. In the celebrated-case of Raunaq A.I v. Chief Settlement Commissioner and others (PL D 1973 SC 236). In that case the High Court bad come to the conclusion that some orders of the Deputy Claims Commissioner were illegal and without jurisdiction but after distinguishing between incorrect decisions and void decisions his Lordship recorded au follows:- "An order in the nature of a writ of certiorari of mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be seaside had occasioned some Injustice to the parties. If it does not work any injustice to any party, rather It cares a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked"
If it well established that remedy, by way of writ of certiorari is a discretionary remedy and would never be granted when it might tend to work injustice in a broad sense. It is not mere non compliance of a statutory Provision that will attract remedy by way of certiorari but one has to see whether the record exhibits a manifest failure of justice which needs and ought to be corrected. If such criterion is not fulfilled this discretionary remedy) would not be available.
12. In regard to the merits or the claim or the petitioner, the case has already been adequately dealt with in tie foregoing paragraphs and suffice now to say that theca is adequate evidence to show that the petitioner has obtained the value of the land.
13. For all the foregoing reasons we find no merit in this petition which is dismissed with costs.