QADIR DAD Versus MUHAMMAD AFZAL

ORDER

AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 18-8-1994 passed by a Division Bench of the High Court of Balochistan in R.F.A. No 02 of 1991, filed by the respondents against the judgment/decree dated 19-3-1991 passed by Majlis-e-Shoora, Kalat at Mastung, whereby the suit of the petitioners/plaintiffs was decreed in respect of agricultural land measuring 12 to 15 thousand acres situated in Mouza Khushki Nali of Tehsil and District Chagai, fully described in the impugned judgment, allowing the same as under:--

"However, it would be relevant at this stage to point out that the appellants have filed an application for additional evidence. Since we have already ordered to remand the case, therefore, the said application shall also be heard and decided on its own merits by Majlis-e-Shoora. Resultantly the case is remanded to Majlis-e-Shoora for disposal in accordance with law. Having considered the chequered history of the case it is deemed fit to direct that the matter be disposed of within three (3) months after receipt of the case file by Majlis-e-Shoora. There shall be no orders as to costs. The case file be immediately returned."

The petitioners/the plaintiffs have, therefore, filed the present petition for leave to appeal.

2. Before proceeding further in the matter, it may be pertinent to point out that the petitioners had filed a petition for leave to appeal against the above judgment of the High Court, but the office of this Court raised an objection on the ground that a regular appeal was competent under sub-clause (d) of clause (2) of Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. Thereupon, the petitioners converted the aforesaid petition into an appeal. The office then raised an objection that the appeal was barred by time by 21 days. If we were to treat the above matter as a petition for leave to appeal, it will be within time.

3. Mr. Basharatullah, learned Senior Advocate Supreme Court appearing for- the petitioners, has vehemently contended that under sub-clause (d) of clause (2) of Article 185 of the Constitution, an appeal is competent "if the amount or value of the subject-matter of the dispute. in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Majlis-e-Shoora (Parliament) and the judgment, decree or final order appealed from has varied or set aside the judgment, decree of final order of the Court immediately below". According to him, the remand order cannot be treated as a decree or judgment in terms of clauses (2) and (9) of section 2 of the Code of Civil Procedure, 1908, hereinafter referred to as the C.P.C.

4. At this stage, it may be advantageous to reproduce clauses (2) and (9) of section 2 of the C.P.C., which read as under:--

"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint the determination of any question within section 144 and an order under rules 60, 98, 99, 101 or 103 of Order XXI but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default."

"(9) "judgment" means the statement given by the Judge of the grounds of a decree or order: "

A perusal of the above definition of the term "decree" indicates that it involves conclusively determination of the rights of the parties with regard to all or any of the matters in controversy in the suit which will include preliminary as well as final decree. It shall also include the rejection of a plaint, determination of any question within section 144 and an order under rules 60, 98, 99, 101, or 103 of Order XXI, C.P.C. but does not include--

(a any adjudication from which an appeal lies as an appeal from an order or

(b) any order of dismissal for default

Whereas Explanation to the above clause points out the distinction between a preliminary and a final decree.

It may further be noticed that the term "judgment" has been defined in the aforequoted clause (9) as means the statement given by the Judge of he grounds of a decree or order.

5. Since in the remand order there is no final adjudication of the controversy in the suit in terms of clause (2) of section 2, .C.P.C., an appeal under sub-clause (d) of clause (2) or Article 185 of the Constitution will not be competent. In this view of the matter, the petitioners had rightly filed the above case as a petition for leave. We treat the same as such. Since the aforesaid matter has been treated as a petition, the limitation period of which is 60 days, the above petition is within time.

6. As regards the merits of the case, it seems to be an admitted position that the Majlis-e-Shoora in the case in hand was seized of the matter as an original Court for trying the suit in question. After the conclusion of the evidence, the arguments of the learned counsel for the parties were heard on 13-2-1991 and the case was reserved for judgment by the Majlis-e-Shoora which comprised Syed Abdul Wajid Agha as the Chairman and two Members. However, it seems that before the judgment could be announced, Syed Abdul Wajid Agha was succeeded by Mr. Hainza Rajbani. The case was adjourned from time to time till 19-3-1991, when the following Court diary was recorded and the judgment was announced:---

7. It is an admitted position that Mr. Hamza Rajbani had not heard the parties as the case was heard on 13-2-1991 by the Majlis-e-Shoora which was chaired by Mr.Agha Wajid. The High Court on the above ground had set aside the aforesaid judgment and decree and remanded the case to the Majlis-e-Shoora for re-hearing. The petitioners/plaintiffs have, therefore, filed the present petition for leave to appeal.

8. In support of the above petition Mr. Basharatullah, learned Senior Advocate Supreme Court appearing for the petitioners has vehemently contended that since the case was heard by the Majlis-e-Shoora which comprised Agha Wajid as the Chairman and two Members and as the said two Members of the Majlis-e-Shoora were parties to the judgment announced on 19-3-1991, there was no irregularity committed. According to him, even if the Chairman would have taken a different view, the majority view of the above two Members would have prevailed.

On the other hand, Mr.Muhammad Aslam Chishti, learned Senior Advocate Supreme Court appearing for the respondents, has invited our attention to subsection (2) of section 5 of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976, which provided that "A Majlis-e-Shoora shall consist of not less than two members, one of whom shall be designated by the Pro-incial Government to be the Chairman". According to him, in the absence of the Chairman, a Majlis-e-Shoora cannot be complete.

9. We are inclined to agree with Mr.ASlam Chishti, learned counsel for the respondents/caveators, that since the Majlis-e-Shoora is not complete unless one of its Members is the Chairman. In this view of the matter, the judgment announced on 19-3-1991 by the Majlis-e-Shoora which comprised Mr.Hamza Rajbani as the Chairman and two Members was not sustainable as admittedly the Chairman of the Majlis-e-Shoora had not heard the parties and decided on the basis of the record. In the absence of ,any express provision authorising the Chairman to adopt the above procedure, the same cannot be sustained in law. A judicial case cannot be decided without hearing the parties unless a party is ex parte in accordance with the relevant provision of the relevant law.

10. Then it was urged by Mr. Basharatullah that in view of Rule 24 of Order XLI, C.P.C., the High Court was obliged to decide the appeal on merits as the record before it was complete which included the pleadings and the entire evidence of the parties.

The above Rule 24, Order XI C.P.C. reads as follows

"24. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."

A perusal of the above-quoted Rule shows that where the evidence upon the record is sufficient to enable the Appellate Court pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determines the suit, notwithstanding the fact that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. The use of the word "may" indicates that it is not mandatory but is discretionary. The Court in a fit case tray decide the appeal on merits without remanding the case to the trial Court. There is no doubt that the latter course of action curtails the prolongation of the agony of the parties and the Appellate Court should prefer the above course of action. However, the failure on its part cannot vitiate the order of remand particularly when there is a justifiable reason. In the case in hand the judgment was rendered by the Majlis-e-Shoora, the Chairman of which had not. heard the parties and, therefore, it was not a judgment given after hearing the parties. In such a situation, the High Court was justified in remanding the case to the Majlis-e-Shoora.

12. The upshot of the above discussion is that the present petition has no merits. Leave is refused.

M.B.A./Q Petition dismissed