MUHAMMAD SHER KHAN Versus ADDITIONAL SECRETARY TO GOVERNMENT OF N.-W.F.P.

ABDUL KARIM KHAN KUNDI, J.‑‑ Writ petition arises in the background of facts that Shah Wazir Khan and others, herein the respondents had claimed the ownership and possession of the disputed land qua Mohammad Sher Khan, herein the petitioner, in a complaint under section 145 Cr.P.C. in the Court of Magistrate Ist Class, Matta who after inquiry found the petitioner entitled to the possession in preference to the respondents and accordingly order the restoration of possession to him subject to the decision of a civil Court regarding title. Respondents went in revision before the Sessions Judge, Swat but with no better fate. Afterwards they filed a declaratory suit in the Court of Senior Civil Judge, Swat who returned the plaint for presentation before a competent forum under the PATA Regulation. At last a suit was instituted in the Court of EAC, Matta with powers of D.C. under PATH Regulation‑‑II of 1975 and since the defendant, herein the petitioner, had raised a preliminary objection of bar of limitation in his written statement, the learned trial Court decided the preliminary issue of limitation as against the respondents holding their suit time‑barred and accordingly dismissed their suit. The orders were assailed in appeal before the Addl: Commissioner Malakand Division (respondent No.2), who did not regard the proceedings under section 145 Cr.P.C. as conclusive evidence on the point of possession to determine the issue of limitation and further held that prima facie the case was not time‑barred and that it should be entrusted to Jirga to give its verdict on the issues to be framed relating to title as well as the effect of various documents regarding the period of limitation involved in the case. His remand order as above was impugned by the petitioner herein in a revision petition before the Addl: Secretary, Home and Tribal Affairs Deptt: (respondent No.l) who had recorded the orders reproduced below:‑

"After going through the case filed and hearing the arguments of the learned counsel for both the parties, I have come to the conclusion that the order of the learned appellate Court is not to call for 'any interference by this Court. The revision petition is, therefore, dismissed and orders of learned Appellate Court maintained."

Feeling over all aggrieved by the orders of respondents 1 and 2, the revisional and appellate forums under the PATA Regulation, petitioner invoked the constitutional jurisdiction of this Court claiming that the adjudication of the issue of limitation was within the exclusive competence of the trial Court i.e. respondent No.3 and that the reference of a dispute to a jirga for determination would only be made if the trial Court holds that the suit is not time‑barred under any Riwaj, custom or usage having the force of law and that there could be no reference of the issue of limitation to Jirga for adjudication as directed in the appellate order of respondent No.2. In case of the revisional forum i.e. respondent No.l, there was alleged non‑application of mind on his part in dismissing the revision petition in routine.

2. Now it is manifest that the learned revisional forum under the PATA Regulation did not give reasons for and against the formation of a view point culminating into the dismissal of the revision petition and the order, as such, is not a speaking judicial order, apt to determine its vires.

3. The impugned order of Addl: Commissioner, Malakand Division (respondent No.2) accepting the appeal of the respondents and remanding the case with direction of reference of the dispute including the issue of limitation to Jirga for adjudication cannot be acknowledged and accepted as a final and conclusive order determining the issue of limitation one way or the other. There was not taken an appeal before him against an interim order of temporary injunction calling for prima facie appreciation of the points in issue. He was seized of an appeal against a final order of the dismissal of respondents' suit having been found as time‑barred by the trial Court and, such, the learned appellate Court was to finally determine the issue one way or the other and in case he was to find the suit within time, he was to remand the case to the trial Court with direction for reference of the dispute to Jirga for decision on merits or if he was to find it a case of paucity of evidence not sufficient to warrant the decision of the issue of limitation one way or the other, then on acceptance of the appeal he was to remand the case to the trial Court with direction to take further evidence in the case on issue of limitation and decide the issue thereafter afresh. In no case he could go for tentative appreciation of the evidence on record on the issue of limitation as to hold that prima facie the case is not time‑barred and that the case as a whole including the issue of limitation should be referred to Jirga for adjudication. Section 4 (2) of PATA Civil Regulation mandatorily forbids the reference of a dispute to a Jirga if a Civil suit in respect thereof would be time‑barred under any 'Riwaj', custom or usage having the force of law. Hence wherever an objection of bar of limitation is raised, the trial Court shall decide the question of limitation as a preliminary issue and for the determination thereof he may call for evidence from the parties but would finally determine the issue holding the suit time‑barred and accordingly to dismiss it or holding the suit as within time and accordingly to refer the dispute to Jirga for adjudication on merits.

4. In view of the afore-going discussion we hold the orders of the revisional court i.e. respondent No.l as passed without application of mind and also not a judicial speaking order and accordingly we declare the same to be without lawful authority and of no legal effect. We also declare the orders of the Appellate Court i.e. respondent No.2 as without lawful authority and to be of legal effect for there did not vest a jurisdiction in him to direct the reference of the over all dispute including the issue of limitation to Jirga for adjudication. We have further found his orders without full application of mind in finally determining the issue of limitation. Accordingly we remand the case to the Appellate Court i.e. respondent No.2 to readmit the appeal of the respondents and to consider the appeal as pending and to decide the same with opportunity of hearing to the parties in accordance with law. We make no order as to costs in the cause. Order accordingly.

M.Y.H./573/P Case remanded.