ZIA UR REMAN Versus ZAKA ULLAH NAIK

1. By this writ petition, the petitioners challenged an order dated 2‑6‑1972 of Mr. Zaka Ullah Naik, Settlement Commissioner (Land), Lahore, passed ex parse against the petitioners and some others, in revision brought by Abdul Ghafoor and Abdus Shakoor (present respondents 2 and 3 respectively). The order was assailed on the ground that the petitioners had not been provided any opportunity of being heard before passing the order against them, that the notices sent to them had been incorrectly addressed and the correct address had been intentionally suppressed with the result that they had not been legally and properly served, and that, therefore, the order was nullity in law.

2. During the pendency of the writ petition, learned counsel for the petitioners took time to enable the petitioners to move the Settlement Commis sioner for setting aside the ed parte order and for re‑hearing the revision. They accordingly filed an application there, under Order IX, rule 13 read with S. 151, C. P. C. but Malik Jahangir Khan, learned Settlement Commissioner (Land), Lahore, dismissed the same, by order dated 8‑11‑1973, on the ground that the recall of the earlier order could be done only by way of revision or review for which he had no power under the law. The authority in Muhammad Aslam Mirza v. Mst Khurshid Begum (t) had been referred to before him but since it related to a matter under the W. P. Urban Rent Restriction Ordinance, he found that authority of little help holding that it was "different in origin than the law relating to and governing the disposal of Settlement appeals/ revisions/reviews." By an amendment of the grit petition, this order dated 8‑11‑1973, too, has been included for the challenge.

3. The point for decision before me is the correctness of the view taken in this subsequent order dated 8‑11‑1973. For, if it is found that the Revising Authority had, in fact, the power to recall the earlier order passed ex parte, the question of such recalling will have to be decided by that authority in the first instance.

4. By virtue of subsection (1) of section 23 of the Displaced Persons (Land Settlement) Act, 1958, every officer appointed under that Act for the purpose of making an inquiry or hearing an appeal has the power vested in a civil Court under the Code of Civil Procedure in respect of matters including the following :‑

(g) Restoration of cases dismissed for default.

3. An identical provision also exists in cl. (g) of subsection P L D 1972 Lah. 603. of section 23 of the sister enactment viz. the Displaced Persons (Compen. & Rehab.) Act, 1958. Since this power relates to inquiry and appeal, a contention had been raised, in the context of the latter Act, before a learned single Judge in Iqbal Hussain Shah v. Abdul Ghani P L D 1967 Lah. 633, that the power under cl. (g) covered only an "inquiry" or an "appeal" but not a revision, and that, therefore, the provision of Order IX, rule 9, C. P. C could not be invoked before the Revisional Authority. The contention had been repelled and it had been observed :‑

4. "There are no provisions under the Act for the dismissal of cases in default, but this power can be considered to be inherent in all those Courts or Authorities who exercise quasi‑judicial powers as a civil Court to dismiss a case for' want of prosecution, and when an order dismissing a case in default is passed, the Court or Authority has inherent jurisdiction to restore it to its file."

5. The above view had been endorsed and adopted by a Division Bench in Mst. Shahjahan Begum v. Mst. Shabbir Fatima P L D 1972 Lah. 546 and it had been held :‑

6. "As the Act does not specifically empower the Settlement Commissioner to dismiss a revision petition in default, similarly there is no specific provision for its restoration. In other words, both the orders must be deemed to be in the nature of inherent powers of the statutory functionary concerned while dealing with a quasi judicial matter."

7. What is true .for restoration of a revision petition dismissed in default must also be true for setting aside an order passed ex parte. For, both the powers emerge from the same principle that when the Revisional Authority has not been expressly empowered to dismiss a petition for default or to proceed ex parte, but then if it so dismisses or so proceeds, it could do so only in the exercise of its inherent power which must ex debito justitia, also include the power to set aside the order of dismissal or the ex parse order. This finds clear support from the following further observation in the same authority of Mst. Shahjahan Begum :‑

8. "Once a revision petition is entertained and notice issued to the opposite party, a lis comes into existence between the contending parties, and the statutory functionary cannot then be permitted to dispose of the same without allowing them a reasonable opportunity of being heard and substantiating their respective claims and contentions. To hold otherwise would amount to endorsing and approving arbitrary action by the Settlement Authorities."

9. In this connection, the Full Bench decision in Muhammad Aslam Mirza v. Mst. Khurshid Begum can be referred to with advantage. The question arising in this latter case had been whether a Rent Controller had power to set aside an ex parte order? It is to be noted that the W. P. Urban Rent Restriction Ordinance (VI of 1959) is totally silent in regard to any power to restore a petition dismissed in default or to set aside an order passed ex pare. The majority view was in the‑affirmative, as can be seen from the following observation appearing at page 657 :‑

10. "I am of the opinion that to deny the right to a person to apply for restoration of a case, dismissed in default or for setting aside an ex parte order . . . . . on the ground that the suit has ended and, therefore, the Court has become functus officio, for all purposes is not a correct view. The Court may be in a state of suspense to touch the merits of the case until the suit is revived but for the purposes of revival of the case, since, these proceedings are part of the suit, the Court is very much there and so also its authority and jurisdiction."

11. Although the principle enunciated above related to the Ordinance VI of 1959. it is of a wider applicability and can be pressed into service in analogous situations.

6. In the light of the above discussion, I am confirmed in my view that an application for setting aside an ex parte order can be entertained and decided by the Revising Settlement Authority. In this view of the matter the impugned order dated 8‑11‑1973 is not sustainable and must, therefore, be held to be without lawful authority and of no legal effect. I declare accord ingly. The result will be that the petitioners' application for setting aside the ex parte order shall be decided afresh by the Revising Authority. The writ petition is disposed of in these terms. The parties shall bear their own costs.

12. S. A. H. Petition accepted.