IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

 

 

  PRESENT:-

 

 Mr. Justice Mohammad Junaid Gaffar

        Mr. Justice Zulfiqar Ali Sangi

 

 

 

C.P No.D-2234 of 2010

 

 

Petitioner:                                          Ashique Ali Mari, through Syed Jaffar Ali Shah, Advocate.

Respondents No. 1 & 2:                     Through Mr. Ahmed Ali Shahani, AAG

 

Respondent No.3:                              Rasool Bux alias Ghulam Rasool through Mr. Zakir Ali Rajpar, advocate.

Date of hearing:                                 24.08.2021

Date of order:                                    24.08.2021

 

 

JUDGMENT

 

Zulfiqar Ali Sangi, J:              Through this petition, the Petitioner seeks following reliefs:-

a)                  That it may be declared that order dated 19.10.2010 passed by Respondent No.1 on the reference of respondent No.2, and on the application of respondent No.3 is against principle of natural justice and it has been passed without powers, authority and jurisdiction, further same may also be declared as nullity in the eyes of law.

b)                  That the act and action of respondents No.01 and 02 nullifying the judgment dated 07.06.2010 and decree dated 12.06.2010, passed by competent civil court be directed as illegal, unlawful and void ab initio.

c)                  That it may also be declared that judgment and decree passed by the competent court of Civil jurisdiction will take precedence over the orders of the Revenue authority.”

 

2.                 Learned Counsel for the Petitioner contends that prior to order dated 19.10.2010 (impugned herein) passed by Executive District Officer (Revenue) Khairpur, the Petitioner had filed a Civil Suit No.109/2010 (Old No.12/2010) for declaration, possession, mesne profit and permanent injunction before the court of learned 1st Senior Civil Judge, Khairpur, on 01.03.2010, in respect of Survey No.416(8-12), 417 (7-35), total area 16-07 acres, Deh Saido, Taluka Nara, District Khairpur, which was purchased by the present petitioner through registered sale deed dated 07.07.2009 from Respondent No.4 and thereafter on the basis of said sale deed, a mutation entry No.811 dated 04.08.2009 was also maintained in the revenue record; that said suit was contested by the Respondent No.3 and others, both the parties led their evidences and thereafter suit of the present petitioner was decreed on 12.06.2010 and the petitioner was declared as lawful owner of aforesaid land in question; that the Respondent No.3, being aggrieved by judgment and decree passed by 1st Senior Civil Judge, had  filed an appeal before learned District Judge, Khairpur, which was transferred to the court of learned 3rd Additional District Judge, Khairpur, and the same has also been dismissed vide judgment dated 25.03.2014; that the Respondent No.3 against such order filed a Misc. Application before Respondent No.2, who thereafter made reference to Respondent No.1 and the Respondent No.1 ultimately cancelled the entries in the name of Petitioner as well as in the name of Respondent No.4 without joining the petitioner as a party; nor petitioner was served with notice for being heard; that the Respondent No.1 was negligent and exceeded his powers, while passing the impugned order dated 19.10.2010, whereby entries in the name of present petitioner were cancelled. He lastly, submits that impugned order dated 19.10.2010 passed by Respondent No.1 may be set-aside as the same has been passed unlawfully, knowingly, deliberately and with ulterior motives.

 

3.                 Learned Counsel for the Respondent No.3, at the very outset, submits that Respondent No.1 has rightly passed the impugned order dated 19.10.2010, whereby entries in the name of petitioner were cancelled; that judgment and decree was obtained by Petitioner from learned 1st Senior Civil Judge by misguiding the Court and without disclosing the actual facts; that there is no any illegality or infirmity in the order dated 19.10.2020, therefore, it does not require any interference by this Court.

 

4.                 We have learned counsel for the parties and have gone through the available record with their able assistance.

 

5.                 We observe that initially the petitioner filed F.C Suit No. 109 of 2010 (old No. 12/2010) before 1st Senior Civil Judge, Khairpur, against the respondents No. 3 and 4 in respect of the property involved in the impugned order, they contested the said suit and the same was decreed vide judgment and decree dated: 7-6-2010 and 12-6-2010 in favour of the petitioner. The respondents challenged the above judgment and decree by filing civil appeal No. 104 of 2010 on 18-06-2010 which was admitted and notices were issued on 22-06-2010. After the notices on appeal the District officer (Revenue), Khairpur sent reference for Suo Moto proceedings in respect of the same property on the application of respondent No.3 on 24-06-2010 and the same was entertained by the Executive District officer (Revenue), Khairpur and decided vide the impugned order dated: 19-10-2010. On care full scrutiny of the impugned order it is very much clear that the Executive District Officer (Revenue), Khairpur was in knowledge about the Judgment and decree in favour of the petitioner in F.C. Suit No. 109 of 2010 (old No. 12/2010), and the same has, even, been mentioned in the said impugned order which is reproduced as under:-

“Ashique Ali has also filed suit for possession in the court of senior civil judge khairpur which has been decided in his favour.”

 

 

6.                 Record further reflects that though the Executive District officer (Revenue), Khairpur was in knowledge about the judgment and decree of the civil court in favour of the petitioner yet he had not issued any notice to the petitioner for providing him an opportunity of hearing which, otherwise, is mandatory requirement under section 164 of the Land Revenue Act, 1967, and the same is reproduced as under:-

164.    Revision—(1)   The Board of Revenue, may, at any time, on its own motion, or on application made to it with ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it.

2)         A Executive District Officer (Revenue) or Collector may, at any time of his own motion, or on an application made to him within ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer under this control.

3)         If in any case in which a Collector has called for a record he is of opinion that proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Executive District Officer (Revenue).

4)         The Board of Revenue may, in any case called for under sub-section (1) and a Executive District Officer (Revenue) may in any case called for under sub-section (2) or reported to him under sub-section (3) pass such orders as it or he thinks fit.

Provided that no order shall be passed under this section reversing or modifying any proceedings or order of a subordinate Revenue Officer affecting any person without giving such person an opportunity of being heard.     

 

7.                 From the above it is very much clear that the affecting person can’t be condemned unheard and has to be allowed an opportunity of hearing in case any order is passed against him/her. Prima facie, the law itself requires the authority to ensure proper and fair opportunity of hearing to the one whose rights or interests are likely to be prejudiced then the authority, legally, is left with no option but to follow the commandment of law. Any deviation shall amount to ‘violation of law/procedure’ hence would render the order as illegal and mala fide. Guidance is taken from the case of Said Zaman Khan & Ors v. Federation of Pakistan through Secretary Ministry of Defence & Others (2017 SCMR 1249), wherein at Rel. P-1279, it is held as:-

 “80.   Muhammad Haleem, J., as he then was, in the case reported as Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others (PLD 1971 Karachi 514), observed as follows:-

 

“…. An order in violation of law is mala fide in law, though actual malice may not be present in the mind of the authority passing the order.”

 

8.                Admittedly, there was a judgment and decree of the civil court in favour of the petitioner and such fact was in active knowledge of the authority; yet the petitioner was not afforded opportunity of hearing, though the record was made available with the Executive District Officer (Revenue), Khairpur, but he totally ignored the same and passed 'the order unilaterally, which is clear violation of the doctrine of ‘audi alteram partem’. The maxim, 'Audi Alteram Partem' means 'hear the other side', or 'no man should be condemned unheard' or 'both the sides must be heard before passing any order'. Meaning thereby the maxim itself says no person shall be condemned unheard. Before any action is taken, the affected party must be given a notice to show cause against the proposed action and seek his explanation. Non-issuance of notice, or any defective service of the notice do not affect the jurisdiction of the authority; but violates the principle of natural justice. It is a sine qua non of the right of fair trial and due process. Worth adding here that term ‘due process’ stood defined by Honourable Supreme Court in the case of Ishtiaq Ahmed v. Hon’ble Competent Authority (2016 SCMR 943) as:

 

4. The right of due process is not new to our jurisprudence and finds expression in the provisions of Article 4 of the Constitution. This right has been interpreted by this Court in several pronouncements. The case of New Jubilee Insurance Company v. National Bank of Pakistan (PLD 1999 SC 1126) summarizes the features of that right very aptly. It is held that the right of due process requires that a person shall have notice of proceedings which affect his rights; such person must be given a reasonable opportunity to defend himself; the adjudicatory tribunal or forum must be so constituted as to convey a reasonable assurance of its impartiality and that such tribunal or forum must possess competent jurisdiction.

 

9.                We shall not hesitate in adding that any order passed without giving notice is against the principles of natural justice and that of term due process, hence shall be void ab initio. If the order is passed by the authority without providing the reasonable opportunity of being heard to the person affected by it adversely, will be invalid and must be set aside.

 

10.              Another aspect of the case is that the respondent No. 3 availed two remedies at a time a). one by filling civil appeal No.104 of 2010 filed on 18-06-2010 which was dismissed by 3rd Additional District Judge, Khairpur, vide judgment and decree dated: 25-3-2014 and b). Filling application before the District Officer (Revenue), Khairpur which was forwarded to the Executive District officer (Revenue), Khairpur for taking Suo Moto proceedings on 24-06-2010, which was after the 06 days of filling the civil appeal before the District Judge Khairpur. The parties cannot be allowed to go on expedition to venture another remedy for the same cause which though available, but was not invoked by them and they cannot be given premium to go on venturing one remedy after the other as has been held by the Supreme Court in case of Trading Corporation of Pakistan V. Dewan Sugar Mills Ltd., (PLD 2018 SC 828).

 

11.              The facts in respect of the filling application before the District Officer (Revenue), Khairpur were not brought on the notice of the Appellate Court and as a result thereof, the Appellate Court while dismissing the appeal of the respondent. No. 3 has observed in the paragraph 12 of the judgment as under:-

12.       The appellants/defendants claimed to have derived the title of the subject property from their elders namely Qadir Bakhsh and Leedo, but both of them have not been examined by the defendants/appellants, there is no evidence available on record, which suggest that any suit for cancellation of the registered sale deed in favour of the plaintiff/respondent No. 1 has been filed. The entry No. 728 shows that the suit land got entered in the name of Sodho on the basis of T.O Form No. 1470, but such entry has also not been challenged by the appellants/defendants before revenue forum. The plaintiff/respondent No.1 claims to be owner of the suit property on the basis of registered sale deed, and in absence of any other material, the learned trial court rightly declared the plaintiff to be owner of the suit property and the property admittedly in the possession of the appellants/defendants was rightly declared to be in illegal possession of the suit land.  

 

12.              We have been informed by both the parties that no Revision Application against the above judgment of Appellate Court was filed by the respondent No. 3 before this court which attained finality. Here, it is worth adding that legal position shall always be that ‘Every presumption should invariably be made in favour of the jurisdiction of the Civil Court and all laws touching upon the usual jurisdiction of the case should be construed strictly and that ‘the Revenue Officers are bound to give effect to the decree, passed by the Civil Court in the Revenue Record because ultimate jurisdiction remains with the Civil Court to settle the issue. Reference , if any, may be made to the case of Abdul Majeed & 5 others v. Province of Punjab & others, (2010 CLC 146). In short, the Revenue Officer can’t sit over the judgment and decree, so recorded by the Civil Court, directly and even indirectly. If so, the same shall be void for want of jurisdiction.

 

13.              It is observed that the grounds taken in the Suo Moto reference made by the District Officer (Revenue), Khairpur to the Executive District Officer (Revenue), Khairpur on the basis of which the impugned order was passed were available with the respondent No.3  but no issue on this respect was framed nor any application for amendment of issues was made to the civil court; hence respondent No.3 cannot take any of the plea available to him at the time when proceedings in respect of the same property in between same parties were pending, before any forum subsequent to those proceedings before the civil court. Order VIII rule 2 CPC related with the filling of written statement provides such a provision which reads as under:-

 

ORDER VIII. WRITTEN STATEMENTS AND SET-OFF

 

1.   XXXXXXXXXX

 

2.   New facts must be specially pleaded.--- The defendant must raise by his pleadings all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite-party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or fact showing illegality.

 

 

  

14.              However, from the perusal of memo of appeal (paragraph no. 9) we found that all the grounds taking in the Suo Moto reference were taken in the appeal and the said appeal filed by the respondent No. 3 was dismissed by the 3rd Additional District Judge Khairpur, where the civil court has decided the issue then the revenue authorities have no jurisdiction to decide the same plea. Here, it may also be added that when the law does not permit for doing a thing yet the same is done then status thereof would be no legal value and sanctity as has been held by the Supreme Court in case of Govt. of Sindh through Secretary  & DG, Excise & Taxation and another V. Muhammad Shafi and others (PLD 2015 S.C 380), wherein it is held as:-

“If an act was done in violation of law, the same shall have no legal value and sanctity, especially when the conditions/circumstances which rendered such an act invalid had been expressly and positively specified in law.”

 

 

 

15.              In view of the above facts and the circumstance it appears that the Executive District Officer (Revenue), Khairpur, while ignoring the judgment and decree of the civil court has traveled beyond its jurisdiction as he could not have passed any order, to decide the controversy which has already been decided by the Civil Court and maintained by the Appellate Court.  The petition as such is allowed and the impugned order dated: 19-10-2010, passed by the Executive District Officer (Revenue), Khairpur was set aside by us on 24.8.2021 by way of a short order and these are reasons thereof.

 

 

                                                                                                JUDGE

 

JUDGE