C.M. No. 1572 and 1573/2000 CH. IJAZ AHMAD, J.--- C.M. No 1572/2000 was filed by respondent No. 2 for dismissal of writ petition as having been abated due to death of petitioner. C.M. No. 1573/2000, this is an application for brining on record legal heirs of Rana Muhammad lqbal-petitioner No. 1
2. Learned counsel for respondents No 2/applicant, submits that all three petitioners have since been died. Muhammad Iqbal petitioner died on 14.2.1992 as is evident from death certificate attached with this application whereas the exact date of other two petitioners is not known as they are said to have been died in the interior Province of Sindh. Muhammad lqbal, died on 14.2.1992, the legal heirs of petitioner No 1 Muhammad lqbal filed present application to bring on record on 23.11.2000 which is highly time-barred although the material change were made in Order 22, CPC by virtue of Law Reforms Ordinance, 1972 but there is no parallel amendment under Article 176 of the Limitation Act, therefore, legal heirs of petitioner cannot be impleaded and writ petition is abated automatically. In support of his contention he relied upon Saif-ud-Din's case (1995 CLC 1348) and Sardar Noor Hussain's case (PLD 1983 SC 62). He further submits that right of pre- emption is personal right, therefore, does not survive as pre-emptor who died during the pendency of writ petition. In support of his contention he relied upon Sh. Inayat All's case (1976 SCMR 12).
3. The applicant's/petitioner's counsel in C.M. No. 1572/2000 submits that due to amendment introduced in Order 22, CPC, writ petition cannot be abated; that writ petition is to be decided on merits even without impleading legal heirs of petitioners.
4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that Muhammad Iqbal-petitioner died after coming into force of Law Reforms Ordinance, 1972 and even the writ petition before this Court was filed in the year, 1988, therefore, under the existing provisions Rule 3 of Order 22, CPC, it was necessary to implead the legal representative of parties and writ petition can be proceeded with and decide as if the petitioners had not died. The aforesaid Order 22, CPC was interpreted by my learned brother Mr. Justice Ihsan-ul-Haq Chaudhry, J. In Sultan Ahmad's case (NLR 1989 appeal case 748) and laid down the following principle:- "The judgment and decree of the lower Appellate Court. Is also liable to be set aside as it h as failed to note the fundamental changes introduced in Order 22 while Law Reforms Ordinance, 1972 specially substitution of Rule 3(2), 4(3) of this Ordinance. The result was that devaluation of interest on account of death of survival plaintiff-defendant or sole plaintiff-defendant was brought at bar with other assignment. Devaluation etc. During the pendency of suit now even if one of several plaintiffs or defendants urged sole plaintiff-defendant died, the proceeding will remain un-abated.
There will be no abatement because the impleading the legal heirs of deceased party has been done away by the Law Reforms Ordinance, 1972. Now like any other devalue of interest the heirs of deceased party can be impleaded as party, to the proceedings that any time at any stage."
The aforesaid proposition of law was also considered in Muhammad Riaz's case (1994 MLD 2270) and observed as under:- "Fundamental changes were introduced in Order XXII of C.P.C. By Ordinance XII of 1972 and concept of abatement of civil proceedings was wholly done away with,"
The aforesaid proposition of law was also considered in Ismail and others' case (NLR 1980 unreported case 287) and disposed of application in the following terms:- "In any case, the question of dismissal of writ petition as having abated, does not arise under the Ordinance. The application for impleading the legal heirs of Ismail, petitioner No. 1, is therefore, allowed. The other application for dismissing the writ petition as having abated fails and is dismissed."
The Hon'ble Supreme Court has laid down principle in Khuda Yar's case (PLD 1975 SC 68); that technicalities should not defeated the ends of justice. The Hon'ble Supreme Court has laid down a principle that after addition of Article 2-A in the Constitution that cases must be decided on merits instead of technicalities in Said Muhammad's case (PLD 1989 SC 532). This Court also followed the aforesaid principle in Alam Din's case (1999 MLD 2146) and M/s. Adam Gee. Constructions'
Company case (1999 MLD 2202). Order 22, CPC was also interpreted by the Hon'ble Supreme Court and did not abate proceedings in the following judgments.
Allah Ditta's case (1992 SCMR 1974). Allah Wasaya's case (1992 SCMR 2184).
The Hon'ble Supreme Court has considered Order 25, Rule 4, CPC and Article .177 of Limitation Act in Jamil Ahmad's case and ,observed as follows:- it is well-settled that principle object behind all legal formalities is safeguarded the paramount interest of justice and' mere technicalities unless affording an unsurmountable hurdle should be allowed to defeat the ends of justice. Reference is made (PLD 1975 SC 68) and it was observed by Kakous, J. (PLD 1963 SC 382) and finally in para 10 set aside - the abatment order and impleaded legal representative."
The judgment cited by learned counsel for respondent No. 2 would not support the cause of applicant respondent No. 2 in Saif-ud-Din supra case (1976 SCMR 12) and observed as under:- "The same Bench has further held that failure of legal representative of deceased to apply within prescribed by law would debar them from taking part in the proceedings and suit was continued in the name of dead-body."
It is pertinent to mention here that Division Bench of Karachi High Court did not abate the proceedings similarly the case relied upon Sardar Noor Hussain supra (PLD 1983 S.C. 62) is also distinguished on facts as the proceedings were initiated before the enforcement of Law Reforms Ordinance, 1972, Similarly, the case relied upon by learned counsel of respondent No. 2 Sh. Lnayat A.I supra (1976 SCMR 12) does not support the case of respondent No. 2-applicant as is evident from the following observation of Hon'ble Supreme Court:- "In support of petition, learned counsel for petitioner contended that right of pre-emption was personal right is distinguished from and there does not survive as preemptor who died during the pendency of his pre-emption suit . The same arguments are repelled and in our opinion rightly laid down by the learned Single Judge because of Full Bench Judgment of Lahore High Court in Allah Dad Vs. Hakim Dad (PLD 1960 Lah. 900)."
C.M. No. 1574/2000 This petition is also disposed of accordingly.
CH. 1JAZ AHMAD, J.--- Briefly, the fact out of which writ petition arise are that petitioners purchased agricultural land measuring 67 kanals, 1 marla from Niaz A.I s/o. Ghulam Farid for consideration of Rs.11,200/- situated Noshera Virkan Tehsil and District Gujranwala vide registered sale-deed dated 31.5.1978. Respondent No. 2 filed a suit for pre-emption against the petitioners being tenant on the basis of para 25(d) of Martial Law Regulation No. 115 of 1972 before the Assistant Commissioner, Gujranwala. The present petitioners filed written statement controverted the allegations levelled in the plaint _ and raised preliminary objection that suit was time-barred. The learned A.C. Decreed the suit vide judgment and decree dated 23.9.1982. The petitioners being aggrieved, filed appeal before the Addl. Commissioner Revenue, Gujranwala, who accepted the same vide order dated 13.11.1983 and remanded the matter to A.C. To decide afresh after providing due opportunity to the parties. The A.C. Partly decreed the suit and partly dismissed vide judgment and decree dated 28.12.1985 after remand. The Assistant Commissioner held that Muhammad A.I and Muhammad Din were two different persons, therefore, Muhammad A.I was entitled to a decree of 41 kanals, 1 made only. The suit with respect to the rest of the land was dismissed. The petitioner and respondent No. 2 being aggrieved filed two independent appeals before the Addl. Commissioner Revenue Gujranwala, who dismissed the appeal of respondent No. 2 vide separate order dated 7.7.1986 whereas the appeal of petitioners was accepted by separate order dated 7.7.1986. Respondent No. 2 being aggrieved filed only one revision against the order of dismissal of his appeal to the extent of 26 kanals of land in question before the Member B.O.R., who accepted the revision petition vide order dated 30.6.1988, qua the total suit land measuring 67 kanals, 1 marla present writ petition.
2. The petitioners' counsel submits that respondent No. 2 did not file any revision before the M.B.R.
Against the acceptance of appeal of petitioners by separate order dated 7.7.1986 which is attached with the writ petition as Annex 'N' as is evident from prayer of revision petition filed by petitioners/respondent No. 2 before the M.B.R. Which is to the following effect:- ,"that dismissing the suit of petitioner/respondent 2 of 26 kanals be set aside and the suit originally filed by petitioner/respondent No. 2 be decreed with costs throughout."
He further submits that M.B.R..Without calling for the record from the Trial Court accepted the revision petition through the impugned order; that M.B.R. Accepted the revision petition and set aside the concurrent findings of Courts below in violation of principle laid down by superior Courts.
In support of his contention he relied upon Shah Muhammad and others' case (1994 SCMR 579) and Muhammad Zaman and 10 others' case (1993 SCMR 197); that M.B.R. Decided the case on surmises and conjunctures; that learned Addl. Commissioner had given ,findings of fact against respondent No. 2 on merits and also after proper appreciation of evidence, the suit was barred by time. The learned M.B.R. Set aside the findings without any material and without applying his mind treating that endorsement dated 16.6.1999 tantamount to institution of suit which was not signed by A.C.; that M.B.R. Was erred in law that suit was examined and found to be within time by the same official who registered the suit on 16.6.1979; that learned M.B.R. Was erred in law to consider that suit was filed within time and A.C. Inadvertently did not sign the interim order dated 16.6.1999; that A.C. As well as Addl. Commissioner Revenue decided the case in favour of petitioners to the extent of 41 kanals against which respondent No. 2 did not file any revision, therefore, order of learned A.C. Revenue in appeal- , ACR/GA/5 filed by petitioners attained finality on the well-known principle of res judicata and waiver. The impugned order does not reveal that order of Addl. Commissioner in appal of petitioner was considered by Member Board of Revenue.
3. The learned counsel for respondent No. 2 submits that M.B.R. Has ample powers. To revise the order of-his subordinate by virtue of para 25(7) of the Land Reforms Regulation 115 of 1972; that M.B.R. Has given concurrent findings of fact after appreciation of evidence against the petitioners and this Court has no jurisdiction to substitute its own decision in place of the decision of Tribunal below. The M.B.R. Examined the record and accepted the revision; that Addl. Commissioner dismissed the appeal ACR-GA/3 of respondent No. 2 on 7.7.1986 in the following terms:- "There is no proper evidence on the record to show that appellant is tenant in respect of land measuring 26 kanals. The appellant has miserably failed to prove that he was tenant of 26 kanals of land bearing Khasra Nos. 986, 3636, 998, 997, 4401/998."
He further submits that aforesaid operative part of order of Addl. Commissioner dated 7.7.86 reveals that order of A.C. Dated 28.12.1985 was upheld; therefore, suit qua land measuring 41 kanals was not set aside by the Addl. Commissioner Revenue.
4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is better and appropriate to reproduce material facts in chronological order to resolve the controversy between the parties.
5. The petitioners purchased land in question vide registered sale-deed dated 31.5.1978.
Respondent No. 2 filed suit for preemption on 16.6.1979 registered on 30.6.1979; the suit was decreed by A.C. Vide judgment and decree dated 23.9.82. The petitioners filed appeal before the Addl.
Commissioner which was accepted vide order dated 13.11.1983 and the case was remanded to the A.C. To decide it afresh, who partly accepted the suit and partly dismissed the suit vide judgment dated 28.12.1985.
6. It is pertinent to mention here that A.C. Has given findings of fact that Muhammad A.I and Muhammad Din were two different persons, Muhammad A.I was entitled to get decree of land measuring 41 kanals one marla; whereas the suit with respect to the rest of land was dismissed.
The petitioners and respondents being aggrieved filed two independent appeals before Addl.
Commissioner Revenue but he dismissed the appeal of respondent No. 2 qua the land measuring 26 kanals in question; whereas appeal of the petitioners qua remaining land, measuring 41 kanals, 1 marle was accepted. Respondent No. 2 filed revision petition before M.B.R. With the following prayer:- "It is respectfully prayed that judgment and decree of Appellate Court dated 7.7.1986 and that of Trial, Court dated 28.12.1985 to the extent be dismissed and suit of petitioner for land measuring 26 kanals may kindly be set aside and suit, filed by respondents be decree with costs throughout."
The same was accepted by M.B.R. Through the impugned order in the following terms: "Taking into consideration the above facts I have come to the conclusion that injustice was done to the petitioner. I accordingly accept the revision and restored the order dated 13.9.1982 passed by learned Collector."
Mere reading the aforesaid operative part of impugned order of M.B.R. Clearly reveals that he accepted the revision petition without applying independent mind. Even a prima facie glance at the order would amply demonstrate that it considerable fell short of legal requirements of a proper judgment by a Court of law deciding on the rights of the parties. Para 22(7) of Land Reforms Regulation conferred revisionary powers on the Board of Revenue to satisfy itself as to the correctness legality cr propriety of the proceedings or orders made by the authorities subordinate to it. In the process of opinion making on the correctness legality or propriety of the proceedings or orders sought to be revised, the Board was obliged to examine the material available to it like a Civil Court. Learned Member neither adverted to oral evidence nor addressed himself to the Revenue records and yet he reversed the decision of Addl. Commissioner and accepted the revision petition or with observations consisting of few lines based on surmises and conjunctures.
He may have looked into the record but his judgment did not indicate so. A party bring his cause to the Court for adjudication' was entitled to know the reasons how his case was held with. Brief and sketchy of judgment did not make the requirements of law and also failed to satisfy the searching mind of litigant. Revision in para 25 was not hedged in by restriction mentioned in Section 115 of C.P.C. Had it been a case of an appeal, I would have dealt with it on its merits for final judgment but the scope in writ jurisdiction being limited and also prohibitive satisfaction of opinion, the matter required -fresh consideration in the proper forum. After addition of Section 24-A in the General Clauses Act it is the duty and obligation of public functionaries to redress the grievance of citizen with reasons after applying independent mind as per principle laid down in principle . In M/s. Airport Supports Co.'s case (1998 SCMR 2268). The learned M.B.R. ,did not consider the order of Addl.
Commissioner passed in favour of petitioners. This fact brings the case in the area that M.B.R. Has passed the order without adverting to the record, therefore, same is result of misreading and non- reading of record.
7. In view of what has been discussed above; the writ petition is accepted with no order as to costs and impugned order dated 30.6.1988 is set aside passed by M.B.R. And directed him to re-hear and decide the samo afresh upon existing record after perusal of same. The parties are directed to appear before M.B.R. On 26.1.2001.