The property in dispute and litigation between the parties qua its status has a long and chequered background, however, in view of the limited nature of the controversy arising in this petition detailed reference to all those events is being avoided as unnecessary. Suffice it to state that by order dated 7-4-1977/18-4-1977, Chairman, Evacuee Trust Property Board declared both the properties at Lahore and Sahiwal as evacuee trust property. After having failed in the civil litigation the petitioners filed a revision petition before the Federal Government against order dated 7-4- 1977, which was accompanied by an application for condoning delay but was dismissed on 15-2- 1986 without hearing the counsel for the petitioners. Writ Petition No. 187-R of 1986 was filed before this Court, which was dismissed as withdrawn in view of the matter having already been agitated before the Federal Government for re-hearing. The application for re-hearing was, however, rejected by respondent No.2 on 29-5-1993 holding the view that there did not exist any such provision in the law. It is this order which has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The learned counsel contends that the petitioners were not seeking review of order and they were merely praying to be heard in the matter, which opportunity was not afforded to them despite their application. The learned counsel for the respondent-- Department, on the other hand, contends that there did not exist any such power of review under the law nor the respondent could review earlier order dated 15-2-1986.
3. The perusal of order dated 15-2-1986 shows that on the said date an application was moved before respondent No.2 for adjournment m view of the illness of their counsel Mr. Muhammad Aslam Nagi, Advocate. That request, however, was not acceded to and the matter was decided against the petitioners by dismissing their revision petition. As mentioned above that order was assailed in Writ petition No.187-R of 1986 and while the same was pending, applications for re- hearing of the case and decision on merits were made by the petitioners before respondent No.2 on 13-3-1986 and again on 19-6-1986. It was in this context that Writ Petition No. 187-R of 1986 was withdrawn on 21-6-1986 to pursue the matter before respondent No.2. The order was passed in presence of the learned counsel for the Department also. For a long time the matter seems to have remained dormant when on an application made by the petitioners the Section Officer of the Department conveyed through letter dated 29-5-1993 that their request for reviewing the decision of the Federal Government had been rejected. It is abundantly clear that the revision petition tiled by the petitioners was dismissed without hearing them (as the request for adjournment in view of the illness of their counsel was turned down) and application for re-hearing was also rejected without even any notice or giving them hearing, by taking the view that there was no power of review under the law. Such an approach was wholly misconceived and fraught with misconceptions and non---application of mind. The perusal of application dated 13-3-1986 would show that the petitioners had requested and prayed for recalling of order dated 15-2-1986 and decision of their revision petition on merits after hearing them. Similar request had been repeated by them in application dated 19-6-1986. The question, therefore, is whether they were asking for review or merely for recalling of an adverse order passed without hearing them. The principle that no one should be condemned unheard, although there be no specific provision in the law, is now well-settled and entrenched in our jurisprudence. Besides this general principle observations contained and rule laid down in Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603) by a Larger Bench of this Court gets attracted to the instant case. That was a case where the Rent Controller had passed an ex parte order of ejectment and dismissed the application for recalling of that order. The question arose whether the Rent Controller had such a power, the matter came to be considered before the Full Bench of the Court. One learned Member of the Bench, late Malik Muhammad Akram, J., was of the view that no such power existed with the Rent Controller whereas the majority view taken by late Karam Elahi Chawhan and Fazle Ghani, JJ., was to the contrary. It was observed by the majority in that case that "a party to action is prima facie entitled to have it heard in his presence". Referring to Muhammad Farooq Imam v. Claims Commissioner, Lahore and others (PLD 1964 SC 585) it was held that:- "The above passage will clearly show that in the opportunity to be heard is also included an opportunity to be heard if due to misapprehension or some sufficient cause, a party concerned remains absent.
(b) A distinction is to be maintained (a) in filing an application for claiming a re-hearing of a case, ex parte decided on the one hand, and (b) filing an application for review of setting aside the ex pane judgment itself on the other hand. The points of distinction are that (i) in the former type of proceedings the defendant-petitioner claims a re-hearing on the ground (to put it broadly) that he was prevented by some sufficient cause from appearing on the relevant date of hearing and taking part in the proceedings of the case, while in the latter types of cases, he challenges the ex parte decree itself on its own merits including the errors of procedure in the trial of the case. (ii) In the former case, the merits of the ex parte decision or judgment are not to be taken into consideration, see Firm of Ghumanmal Khatoomal v, Secretary of State for India and another AIR 1926 Sind 249. (i.e) The latter types of cases partake some of the character of the review while the applications for claiming a re-hearing on the ground of earlier absence due to some sufficient I cause are not in the nature of a review."
It was thus held that "whereas a review may not be available unless so provided for in Statute, an application to claim a re-hearing (as is being desired here) being in the nature of a prayer to claim natural justice will always be available". Adherence to the principles of natural justice is rather the duty and obligation of the authority seized of the matter and the party concerned can invoke his jurisdiction for that matter to call such a move made by the aggrieved party as if he was seeking "review" of the matter or invoking that jurisdiction is merely a misnomer. Review of the matter and seeking re-hearing when the party had not been heard earlier on the ground of some sufficient cause cannot be equated or treated alike.
4. The perusal of the relevant law i.e. The Evacuee Trust Properties (Management and Disposal) Act (XII of 1975) would show that it provides for remedy of a revision before the Federal Government under section 17 against orders passed by the Departmental functionaries. By virtue of section 21 of the Act while hearing the appeal or revision the Statutory functionaries including the Federal Government are vested with the powers of a Civil Court and clause (g) empowers to restore cases dismissed for default. Section 27 of the Act envisages representation through counsel. Section 28 empowers the Federal Government to make rules for carrying out purposes of the Act. Pursuant whereof Rules of 1980 were framed i.e. The Evacuee Trust Property (Appeal and Revision) Rules, 1980. Whereas rule 7 takes care of appearance of the parties or their representatives. Rule 8 leaves a scope for adjournments on sufficient cause shown by either of the parties. The scheme of the law i.e. Act as also the rules is clearly indicative of the intention of the Legislature that the authority could on sufficient cause show grant adjournments and even restore the matter dismissed in default. Such a power having been vested with the functionaries under the Act and the Rules is object-oriented i.e. To afford opportunity of hearing to the parties, consistent with the principles of natural justice. It cannot be equated with the power of review, which of course can be exercised only when so conferred by the Statute. The factual and legal position obtaining in this matter did not attract the power of review. It was rather the power to recall an order passed without hearing the petitioners and to afford them opportunity of hearing. Such a prayer was not only consistent with the principles of natural justice but also the provisions of law referred to above. An ideal adjudication and administration of justice is that made on merits. In the instant case this basic principle was overlooked. A few days' adjournment requested by the petitioners on account of the illness of their counsel would not have made much difference, rather the rejection of such request has complicated and in the end prolonged and delayed the adjudication of the matter. By rejecting the application of the petitioners respondent No.2 clearly misconceived the legal position and took the view which was unwarranted by law and untenable. The order impugned, therefore, i.e. 29-5-1993 is not sustainable in law and is declared as of no effect, result, however, would be that the application of the petitioners for recalling of order dated 15-2-1986 and rehearing of the matter for decision on merits will be deemed pending with the Federal Government, which shall be heard and decided ,in accordance with law in the light of the observations made above.