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P L D 2005 PESHAWAR 136

MST. KISHWAR NASEEM
V/S
HAZARA HILL TRACT AND OTHERS

Per Dost Muhammad Khan, J-Constitution of Pakistan (1973), Art. 24-
R/w Civil Procedure Code (V of 1908), S.115,
Provisions (1) & (2)-

The introduction and addition of the above two provisions, into section 115, C.P.C. by the legislature with quick succession, was with the view, to avoid delay in disposal of revision petitions filed in the High Court unaccompanied by all the required documents sufficient for the just decision of the case so that the requirements of calling for the record of the subordinate Court is dispensed with. Under the second proviso, the period of limitation of 90 days provided for filing revision petition is immediately qualified by the words “which shall provide a copy of such decision within three days thereof……..”

It has been judicially noticed that, subordinate Courts, ordinarily, in majority of cases do not comply with the mandatory requirements of the second proviso, thus failing to discharge their essential and mandatory statutory obligation by pushing the aggrieved party to the ordeals of old practice of applying to the copying agency for getting copies of the judgments and decrees of the subordinate Court, the pleadings, the evidence of the parties and all those documents which are required to be placed before the High Court with the revision petition for just decision. Non-performance of such obligation by the subordinate Courts shall be viewed more seriously if the Court penalizes or taxes the aggrieved party, on the ground of limitation, provided in the second proviso. It is, one of the cardinal principle of interpretation of statute that construction on any provision of a statute shall be made in a manner to suppress the mischief and advance the cause of justice. The second principle, of equal considerable worth is that Courts shall not shut its door for an aggrieved party, on ground of technicalities, who has, a genuine grievance.

In the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) the Honourable Supreme Court has laid down a time tested golden principle…… “The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy….any system which by giving effect to the form and not to the substance defeats substantive right (and) is defective to that extent.”

Again the Honourable Supreme Court, in the case of “Riasat Ali v. Muhammad Jaffar Khan two others” (1991 SCMR 496) mainly confronted with the question as to whether annexing of certified or uncertified copies of judgments and decrees, pleadings of the parties and necessary documents as well as evidence recorded by the trial Court, was the essential/mandatory burden of the party filing revision petition in the High Court, came to a conclusion that in genuine cases, where either the Court or the copying agency has a contribution in not providing the copies, the approach of the Court shall be liberal because it should not be forgotten that the scope of revisional powers, though he3dged by conditions, is never the less vast and corresponds to a remedy to certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also make such order in the case as it thinks fit. The Court may extend the time to file the required documents or to call for the record itself where, it proposes to act suo motu.

In the instant case undeniably, the learned appeal Court (D.J.) failed to provide the required copies of the documents to the petitioner to be filed with this petition within three days as is required by the second proviso, a corresponding duty imposed by law on the Court, putting the petitioner on the tight rope of limitation period of 90 days fixed for filing the revision petition. Even the copying agency has failed to comply with the mandatory rules of its manual by not intimating to the petitioner the date on which the copy was to be prepared and delivered as is evident from the additional documents brought on record with the permission of the Court. The petitioner being a lady, after returning to Pakistan from U.K. was staying at Lahore at the relevant time thus there was a gap of communication between her and her counsel. Therefore, the could not be visited with a penalty as suggested in the preliminary objection by the learned counsel for the respondents-defendants because, there is, more than sufficient cause palpable on record for not filing the revision petition within the statutory period.

It is a consistent view that while interpreting any provision barring a remedy on the ground of technically like limitation period, Court has to see first that denial of remedy to the aggrieved party shall not result into grave injustice.

However, there is absolute consistency of view amongst the Honourable Courts including the apex Court particularly in the case of Allah Dino supra) that for doing substantial justice and to rectify grave errors both of law and jurisdiction, committed by the subordinate Courts, High Court is neither bereft nor denuded of the suo motu revisional powers to be exercised in genuine cases, otherwise the corrective and supervisory jurisdiction of High Court primarily meant for this object, would be brought to naught.

In the instant case, both the learned Courts below have not only misconceived the correct factual position but have also failed to apply the correct law and principle of law on the subject. The petitioner’s plea that, she was, residing in U.K., right from the year 1960 and returned to Pakistan few months prior to the institution of her first suit, has not been questioned by the respondents-defendants in any manner rather from the defence taken by them, the same is well established. In fact they have conceded on this point to considerable extent.

Both the learned Courts below, without exercising the required degree of judicial care and caution and without applying the correct law, have jumped at the conclusion that, notices were issued at different occasions/dates to the petitioner on the given address of her nominee and the last one on the address of her brother, namely, Sultan Hameed Rizvi P.W.2), and in this way have tagged her with the requisite knowledge. The conclusion so drawn is based on no legal evidence. In order to establish the service of the notices on the petitioner, the respondents have produced Muhammad Mussadaq, Senior Clerk, the only witness, besides confronting the petitioner with the notices allegedly issued and sent to her. The petitioner had squarely denied the receiving of any notice allegedly dispatched to her by the respondents. Some of the notice was tendered in evidence subject to objection. Neither the dispatch register of the department was produced or tendered in evidence nor the concerned dispatch clerk was produced to establish that indeed the questioned notices were drawn, entered in the dispatch register and were duly posted on the given address to the petitioner or her nominee. Similarly neither postal receipts nor A.D. cards were produced to prove that the notices were duly served on the petitioner. Out of these questioned notices some have been returned by the postal authorities with remark/endorsements that the addressee was not found on the given address.

Section 27 of the General Clauses Act, lays down essential conditions for drawing legal presumption regarding proper service by post which includes putting proper address of the addressee, pre-paying the postal charges (receipts) and the posting of the notice by registered post. The evidence led by the respondents-defendants does not fulfil these mandatory conditions. They have deliberately suppressed the relevant copies of the dispatch book/register, the postal receipts and A.D. cards, if any received back. In the absence of such evidence, merely bringing on record copies of the notices allegedly issued to the petitioner or her nominee would not give rise to the presumption that the same were in fact dispatched to her or that she had received the same in due course, more so, when the petitioner and her brother both have categorically repudiated the service of such notices upon them.

Not because for the above reason alone, both the learned Courts below have failed to see and judge that, after payment of the auction/sale price and other charges/fee final allotment order about suit plot was issued in favour of the petitioner by the competent authority, thus she had become owner of the same under the law. The rest of the formalities, contained in the auction notice, were meant only to keep away undesirable purchaser indulging in speculation for price and profits there from which is not the case of the petitioner. Moreover, when admittedly the petitioner was abroad for a considerable period leaving behind no constituted and authorized agent except the last one, her brother, who had also retired from service and who has also denied the service of any notice on him, it was all the more essential for the respondents-defendants to have got published a notice in the press in the name of the petitioner about the proposed penal action in case of non-compliance.

The provision of Article 24 of the Constitution in a strict commanding language squarely prohibits the depriving of any person of his property save, in accordance with law. The petitioner has been condemned unheard and her property (the suit plot) has been resumed and the allotment in her favour has been cancelled in disregard of the clear prohibition divesting her of her lawful ownership over the same by the respondents, without laying down any solid foundation for such a drastic action. Thus the impugned action of the respondents-defendants is in violation of law and principle of natural justice, thus could not be sustained on any premises whatsoever. Moreover, she has categorically stated that partial compliance was made by her with one of the condition of auction by constructing two rooms on the suit plot which is still in her possession and this claim of the petitioner has not been challenged in any manner by the respondents-defendants. [pp. 145, 146, 147,148, 149] A,B,C,E,F,G,H,J,K

Abdul Sattar Khan for Petitioner.

Malik Manzoor Hussain for Respondents.

Date of hearing : 7th March, 2005.

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