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Petitioner: HIDAYATULLAH AND 21 OTHERS VS Respondent: NOOR.MUHAMMAD AND 49 OTHERS
Court Name: Balochistan High Court Judge(s): Mir Hazar Khan Khoso, Ajmal Mian Title: HIDAYATULLAH AND 21 OTHERS vs NOOR.MUHAMMAD AND 49 OTHERS Case No.: NOT Date of Judgment:1995-10-06 Reported As: PLD 1986 Quetta 107 Result: Case remanded
JUDGMENT
JUDGMENT ' AJMAL MEAN, ACTG. C. J.-This petition is directed against the orders, dated 16th June, 1982, 30th October, 1982 and 26th May, 1983 passed by the respondents Nos. 4, 49 and 50, respectively. The brief facts leading to the filing of the above petition are that the respondents Nos. 1 to 47 Sled s suit on 18th June, 1981 in the Court of Deputy Commissioner, Sibi, who referred it to the Assistant Commissioner, Harnai under Ordinance I of 1968 (hereinafter referred to as the 'Ordinance') for declaration that the suit land measuring 16,010 rods and 36 poles (equal to 4,002 acres, 2 rods and 36 poles) entered at Khewat No, 1, Khatuni Nos. I to 25, situated in Mahal Khushkaba Tangi Mauza Tangi, Sub-Tehsil' Ziarat, was a joint property of the petitioners/defendants and the respondent is/plaintiffs and that the same was liable to be partitioned as per revenue record. The latter summoned the defendants for 28th July, 1981. Asad Khan, petitioner No, 12 in the Original petition and Abdul Hakeem and Abdul Razaq, petitioners Nos. 35 and 36, respectively in the original petition filed written statements. The case fixed for was service on 24th August. 1981. It seems that on 19th August, 1981, certain petitioners/ defendants appeared before the' Assistant Commissioner and requested for the copies of plaint. After that, 40 defendants executed a power-of-attorney in favour of Abdul Manan, Abdul Manaf nd Said Muhammad attested by Naib-Tehsildar, Ziarat and the above Attornies filed a joint written statement on 15th December, 1981. However, the learned Assistant Commissioner rejected the above power-of-attorney, so also the written statement and directed the petitioners/defendants to file separate written statements. After that, the petitioners, defendants filed an application under sections 17 and 18 of Ordinance Il of 1968 for praying that the plaintiffs/respondents be restrained from meddling with the land. This was followed by an application by them before the Deputy Commissioner requesting that the above
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suit and their above application may be consolidated and be disposed of together. The Assistant Commissioner sent the process for service on some of the aforesaid petitioners/defendants through Tehsildar, Ziarat who returned the same with the report that the notices may be served by publication. Thereupon, the Assistant Commissioner ordered the publication of the notices for the unserved defendants in daily Urdu newspaper `Mashriq', dated 7th June, 1982 for appearance on 16th June, 1982. On the latter date, the aforesaid petitioners/defendants did not appear. The Assistant Commissioner declared them as ex parte by an order, dated 16th June, 1982 and thereafter by a second order of the same date, constituted a Tribunal and referred the matter to it for adjudication in terms of the Ordinance. The petitioners/defendants filed an appeal on 28th. August, 1982 against the above order of declaring them as ea- parte, daied 16th June, 1982. While the above appeal was pending, the Assistant Commissioner passed the decree on 8th September, 1982. The petitioners; defendants' appeal was dismissed on 30th October, 1982. They went in revision, in which, reference was also made to the above final order. The above revision was also dismissed by a learned Member of the Board of Revenue by his aforesaid order, dated 26th May, 1983. It may be observed that the petitioners/ defendants did not file any appeal against the above final order, dated 8th September, 1982 passed by the learned Assistant Commissioner. After the dismissal of the above revision petition, they filed the present petition. 2.' It may be pointed out that at the time of filing of the above petition, the petitioners Nos. 3 and 16 in the unamended petition were already dead, whereas, about 22 petitioners were allowed to he dropped as they did not wish to continue as the petitioners, as according to the learned counsel for the respondents, they accepted the above decree of partition. The request of the remaining petitioners to transpose them as the respondents was-rejected by this Court with the result that the present petition is now prosecuted by original 15 petitioners, out of 17 petitioners, though in the amended tale, they are shown as 22 in number. 3. In support of the above petition, Mr. Basharatullah, learned counsel for the petitioners has urged as follows :- (i) That since it was a suit for declaration in terms of section 42 of the Specific Relief Act, the same was not competent under the Ordinance ; (ii) That as in fact, the respondents were seeking partition of the land, the suit was barred by seated 172 of the West Pakistan Land Re' enue Act ; (iii) That the Assistant Commissioner was not justified in rejecting the power-of-attorney in favour of aforesaid three persons, namely, Abdul Manan, Abdul Manaf and Saeed Muhammad, out of them, the first two were defendants themselves. (iv) That since the provisions of C. P. C. Have not been made applicable to the proceedings under the Ordinance and as the Assistant Commissioner is not a Court, he had no power to order substituted service ; (v) That even otherwise, there was no justification to order for substituted service ; (vi) That even if the petitioners were ex parte before the Assistant Commissioner, they were entitled to a notice from the Tribunal in terms of subsection (I) of section 8 of the Ordinance; and (vii) That the petitioner's appeal against the ex parte order was wrongly dismissed by the learned Additional Commissioner. ' On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the respondents has raised the following preliminary objections :- (i) That since the petition was filed by the aforesaid three Attornies, in whose favour a fresh power- of-attorney was executed on 16th April, 1983 and attested on 9th May, 1983 and as one of the Attornies has withdrawn upon filing an application in this petition as an Attorney, the above petition has become incompetent, as there was no power in the above Power of Attorney to act severally ;
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(ii) That since the original petition was on behalf of 47 petitioners and as at present, there are about 15 petitioners, who are supporting the petition, the above petition has become incompetent ; (iii) That since the final order passed by the learned Assistant Commissioner, dated 8th September, 1982 was not challenged, either in appeal or revision, the same cannot be challenged in the present petition (iv) That since the interim. Order of ex parte. Dated 16th June, 1982 stood merged into the final order, dated 8th September, 1982, the petition against the interim order is not competent; and that in the alternative, since the petitioners in their appeal and revision had prayed that the case be remanded to the Tribunal for further proceedings, they had acquiesced in the proceedings. 4. On merits, Mr. Aslam Chishti, learned counsel for the respondents has contended as follows :- (i) That the suit for declaration was competent under the Ordinance ; (ii) That the suit was not hit by section 172 of the West Pakistan Land Revenue Act ; (iii) That the power-of-attorney was rightly rejected by the. Assistant. Commissioner ; (iv) That the Assistant Commissioner had the requisite power to order for substituted service ; (v) That the order of substituted service was warranted by the facts of the case ; (vi) That there was no legal requirement for the Tribunal to have served a fresh notice on the parties, who were declared as ex parte by the Assistant Commissioner (vii) That since the appeal was admittedly time-barred by about 12.13 days, the same was properly dismissed; and (viii) That the decree passed by the Assistant Commissioner does not take away any right of any of the parties as it merely declares that the parties are entitled to a partition according to the entries in the revenue record and, therefore, this Court will not exercise Constitutional writ jurisdiction as it will cause injustice, instead of fostering the cause of justice. 5. It may be pertinent to take up the preliminary objections raised by Mr. Aslam Chishti, learned counsel for the respondents first. ' Adverting to Mr. Chisnti's submission that since one of the three Attornies has withdrawn himself from the above petition with the permission of this Court, the above petition has become incompetent, it may be observed that it has been pointed out by him that the Power of Attorney in question does not contain a clause empowering the three Attornies to act severally. It has, therefore, been pointed out by him that in the absence of an express power to act severally, the Attornies are to act jointly and since one of the Attornies has withdrawn himself, the above petition has become incompetent. Reliance has been placed on the following observation of the learned author appearing in the well-known book, namely, Mogha on the Law and Principles of Conveyancing with Precedents (Pakistani Edition), page 95, which reads as follows :- ' Several Attorneys. If several persons are appointed, it is desirable to provide whether they are to act jointly or severally, as in the aosence of an express provision authorising them to act severally, they will be entitled only to act jointly." ' On the other hand, it has been contended by Mr. Basharatullab, learned counsel for the petitioners that once a legal proceeding has been competently filed by the joint Attornies, the same does not become incompetent merely for the reason that one of the Attornies, does not wish to continue to act as the Attorney. 6. We are inclined to hold that the question, whether a legal proceeding has been competently filed, is to be determined with reference to the date on which the same was filed. In the instant case, admittedly, the above writ petition was filed by the three Attornies jointly and, therefore, it was competently filed. Any subsequent withdrawal by one more Attornies would not render the above petition as incompetent. The effect of the withdrawal would be that in the absence of a clause in the power-of-attorney authorising the Attornies to act severally, the remaining Attornies cannot continue to prosecute the legal proceeding, but the parties on whose behalf they were appearing
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jointly, would be entitled to prosecute the above proceeding competently filed. It may also-be pointed out that the petitioners were represented by their Advocate whose Power was signed by the three Attornies jointly. Till the time the above "Vakalatnama" is withdrawn with the permission of the Court, he continues to represent the petitioners. 7. As regards Mr. Chishti's submission that since the original petition was filed by 47 petitioners and now it is being prosecuted by only about 15 petitioners, it may be observed that he has invited our attention to the fact that in the suit, the respondents/plaintiffs were claiming a declaration in respect of the suit land and, therefore, presence of all the co-sharers as parties to the above petition, is must. It will suffice to say that even one of the petitioners feeling aggrieved by the impugned orders could file the above petition. The petitioners were defendants in the suit and not the plaintiffs. The question whether an effective decree can be granted in the absence of any of the co-sharers may be an issue in a suit for declaration of partition of the landed property, but in our view, this is not relevant in 2 the present petition. Admittedly, the petitioners, who were parties to the C suit have been impleaded as parties to the petition and the fact that some of them have withdrawn themselves to be the petitioners and the factum that the remaining petitioners' request to transpose them as respondents was declined by this Court, would not render the above petition as incompetent. The respondents having themselves opposed the remainin petitioners' request to transpose the petitioners who wanted to withdrawn from the petition as the respondents are estopped from urging the petition has become incompetent because of the above petitioners not being parties to the above petition. 8. Reverting to the contention of Mr. Aslam Chishti, learned counsel, for the respondents that as the petitioners had not challenged the final order, dated 8th September, 1982 passed by the learned Assistant Commissioner in an appeal or revision, the same cannot be assailed in this petition, it may be observed that at the time when the above final order, dated 8th September. 1982 was passed by the Assistant Commi:ssioner, the question whether the ex pane order, dated 16th June, 1982 was., justified was sub judice in an appeal. If the above appeal would have been allowed, the effect would have been that the above final order would have also been nullified as it was on the basis of the above ex parte order. It is true that the petitioners had not filed any appeal or revision against the above final older, dated 8th September, 1982, though they had referred the above final order in their revision, but this fact would not itself be sufficient to debar this Court from granting relief even against the final order, if the basic order on which it was based, is to be held illegal. 9. Reverting to Mr Chishti's contention that since the above ex parte order stood merged into the final order, dated 8th September, 1982, the petitioners cannot assail the interim order, it may be stated that as pointed out hereinabove, the above ex pane order was sub judice before the Appellate Authority at the time when the above final order was passed and the revision was in consequence of the appeal. The present petition has also been filed as a result of the adverse orders passed by the Appellate and Revisional Authorities. The question, whether the above ex parte order was legal and proper remained sub judice throughout and, therefore, it cannot be urged that it cannot bb assailed in the present petition. 10. It may be appropriate to take up the contentions raised by Mr. Basharatullah, learned counsel for the petitioners, as the other submissions of Mr. Chishti can be dealt with later on at the appropriate time. 11. As regards Mr. Basharatullah's submission that the suit for declaration for partition was not competent, he has relied upon the judgment of a D.rB. Of this Court in the case of Mir Rehman Khan and others v. Sardar -Isadullah Khan and 14 others (1) in which, it was held that a suit for declaration in terms of section 42 of the Specific Relief Act is not competent under the Ordinance, as the word "Court" employed in the above section 42 does not cover an Assistant Commissioner or the Tribunal acting under the Ordinance. He has also referred to clause 18 of section 172 of the
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West Pakistan Land Revenue Act, 1967 to indicate that revenue Court has exclusive jurisdiction to grant relief of partition of agricultural land. ' We are not inclined to dilate on the above submissions as we intend to rethand the case and it will be open to the parties to advance their respective contentions. It may be observed that elaborate arguments were advanced by both the learned counsel -for the parties for and against the view found favour with the learned Judges of a D. B. Of this Court in the above reported case of 1983. The correctness of the above view can be examined in an appropriate case, but not in the present case. 12. As regards Mr. Basharatullah's submission that the Assistan Commissioner was not justified in rejecting the power-of-attorney, it may be observed that the defendants Asad Khan, Abdul Hakeem and Abdu Razaq, who were originally petitioners Nos. 12, 35 and 36, respectively filed written statement on or about 28th July, 1981 (Annexures "B" and "C' to the petition), whereas the remaining defendants executed power-of attorney in favour of Abdul Manan and Abdul Manaf, who were them selves defendants in the suit and one Said Khan, who was not a defendant on 20th August, 1981, which was attested by the Naib-Tehsildar, Ziarat on 12th December, 1981. The above Attornies filed a joint written statement on 15th December, 1981 though they were not served with any notice of tb suit. But the Assistant Commissioner rejected the above written statemen and the power-of-attorney on the ground that it was not attested by Magistrate and directed the above defendants to file separate written statements, which was not done. The ex parte order was passed on 16th June, 1982. The question, which requires consideration is, as to whether the rejection of the above power-of-attorney was warranted by law. ' Mr. Chishti, learned counsel for the respondents was unable to cite any provision of law requiring the attestation of a nower-of-attorney, (which is to be used in a legal proceeding) by a Magistrate. However, he has referred to section 4 of the Powers-of-Attorney Act, 1882 and section 85 of the Eviden:e Act. The former section reads as follows :- "4. (a) An instrument creating a power-of-attorney its execution being verified by affidavit, statutory declaration or other sufficient (1) PLD 1983 Quetta 52 evidence, may, with the affidavit or declaration, if any, be deposited in the High Court within the local limits of whose jurisdiction the instrument may be. (b) A separate file of instruments so deposited shall be kept, and any person may search that file, and inspect every instrument so deposi ted, and a certified copy thereof shall be delivered out to him on request. (c) A copy of an instrument so deposited may be presented at the office and may be stamped or marked as a certified copy, and, when so stamped or marked, shall become and be a certified copy. (d) A certified copy of an instrument so deposited shall, without further proof, be sufficient evidence of the contents of the instrument and of the deposit thereof in the High Court. (e) The High Court may, from time to time, make rules for the purposes of this section, and prescribing, with the concurrence of the Provincial Government the fees to be taken under clauses (a), (b) and (c). ( f ) This section applies to instruments creating powers-of-attorney executed either before or after this Act comes into force." 13. A plain reading of the above section indicates that the same is no mandatory. It is not necessary that every power-of-attorney should bee deposited in the High Court alongwith an affidavit or a statutory declaration or other sufficient evidence as to its execution. The effect of the above section seems to be that if a power-of-attorney is deposited in the High Court in terms of above clause (a) of section a, production of a certified copy thereof from the High Court without any further proof will
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be SW& client proof of the correctness of the instrument. As regards section 85 of the Evidence Act, it may be mentioned that the same provides that the Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a notary .Public, or any Court, Judge, Magistrate (Pakistan) Consul or Vice-Consul, or representative of the Central Government was so executed and authenticated. It is an admitted position that NaibTehsildar is a Third Class Magistrate and, therefore, falls within the ambit of the above section 85 of the Evidence Act. The aforesaid powerof-attorney, therefore, was factually attested by a Magistrate in terms of the above section. However, Mr. Chishti, has relied upon the following observation of the learned Author appearing in the Book "Principles and. Digest of the Law of Evidence" by M. Munir, which reads as follows :- "Power-of-attorney.-A power-of-attorney purporting to have been executed before and authenticated by any of the pepons mentioned in this section must be presumed to have been so executed and authenticated. If the document does not purport to have been executed before, and authenticated by, any of the persons mentioned in the section, there would, of course, be no presumption as to its execution and authentication. But the provision contained in section 85 is not of an exhaustive character, and other modes of providing the execution of a power-of-attorney are not excluded. Thus, the execution of a power-of-attorney may be proved by the production of an affidavit as to its execution made before a person competent to administer an oath. Authentication contemplated by the section does not merely mean attestation." ' The above passage does not in any way support the contention of Mr. Chishti, learned counsel for the respondents. On the contrary, it indicates that if a power-of-attorney is not executed and authenticated, before the persons named in the above section 85, even then, it can be proved by production of an affidavit as to its execution made before a person competent to administer oath. In the instant case, if the Assistant Commissioner was not satisfied a to the execution of the power- of-attorney for the reason that it wa attested subsequent to its execution, the only course for him was to ask for further evidence for its execution or to have asked the said defendant to file an affidavit of the Naib-Tehsildar. The rejection of the above power of-attorney and in consequence the written statement filed by them through the attorney was not warranted by law. It may also be pointed out that in any case, the above written statement could have been treated as the written statement of Abdul Man= and Abdul. Manaf, who were themselve the defendants in the suit. The above illegal act on the part of the Assistant Commissioner has seriously prejudiced the above defendant in the suit. 14. Adverting to the submission of Mr. Basharatullah, learned counsel for the petitioners that since the Code of Civil Procedure has not been made applicable to the proceedings under the Ordinance and as the Assistant Commissioner is not a Court, he had no power to order for substituted service, it may be observed that he has. Referred to section 3 (2) of the Ordinance, which provides that "except as otherwise provided in this Ordinance, the provisions of the Evidence Act, 1872) and the Code of Civil Procedure, 1908 (V of 1908) shall not apply to any proceedings under this Ordinance". He has also referred to the following judgments :- (i) Siraj Din v. Mst. Iqbal Begum PLD 1968 Lab. 639, in which, a D. B. Of the erstwhile High Court of West Pakistan held that provisions of Order V, rule 17, C. P. C. Are technical and penal in nature and were not applicable to a proceeding before a Rent Controller under the late West Pakistan Urban Rent Restriction Ordinance, 1959, as section 16 of the Ordinance refers to Order XVI, C. P. C. Only. (ii) Samundur son of Jullundar and (17 other petitions) v. The Crown PLD 1954 FC 228. In the above case, the petitioner had challenged the proceeding under the F. C. R. (III of 1901). The Honourable Federal Court while dealing with the appeal filed by the accused observed that the proceedings under the above Regulation were not to be regarded as proceedings in justice, but they are from every point of view to be regarded as proceedings before an administrative agency, specially pros
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ided for the settlement of criminal causes. It was also observed that the cases bear resemblance in several respects to the reported case of Moses v. Parker (L R 1896 A C 245). ' Firdaus and another v. Pakistan PLD 1961 (W. P.) Pesh. 165, in which, a Full Bench of the erstwhile High Court of West Pakistan while construing section 11 of the F. C. R. Observed that the mode of inquiry by a Jirga is not regulated by laws ; a Jirga unlike a criminal Court is both investigator and Judge; it not only hears evidence but it also discovers evidence." ' On the other hand, Mr. Aslam Chishti, has referred to the following judgments :- (i) Ayub Khan and another v.. Fa:al Haq and others PLD 1976 SC 422, in which, the Hon'ble Supreme Court held that service by affixation under Order V, rule 17, C. P. C. Was not penal and was applicable in a proceeding before the Rent Controller under the late West Pakistan Urban Rent Restriction Ordinance, 1959. The above Lahore judgment in the case of Siraj Din v. Mst. Iqbal Begum, PLD 1968 Lab. 639 was expressly overruled. (ii) Afiaruddin Bhuyian v. Wazed Ali Khan and another PLD 1955 Dacca 209. In the above case, a learned Single Judge of the Dacoa High Court held that a District Judge or a subordinate Judge deciding an Election Petition under the Bengal Local Self-Government Act (111 of 1885) is not a persona designata but a Court within the meaning of section 115 of the Code of Civil Procedure. The learned Single judge also discussed elaborately the meaning of the word 'Court'. In brief…
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