Qazi SHAMSUR REHMAN Versus Mst. CHAMAN DASTA

SARDAR MUHAMMAD RAZA KHAN, J.-- ----Qazi Shamsur Rehman and his sister seek leave to appeal against the judgment, dated 3-12-2001 of a learned Single Judge of Peshawar High Court whereby the revision petition of Mst. Chaman Dasta, respondent was accepted the judgments of the two lower Courts were set aside and the case was remanded back to the Illaqa Qazi for disposal under the provisions of provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation 11 of 1994.

2. The respondent had brought a suit in the Court of Illaqa Qazi. Timergara for declaration, possession and permanent injunction qua her Shari share to the extent of 2/5 in the property of her grandfather Qazi Muhammad Amin. Such suit was dismissed by the trial Court as well as by the First Appellate Court but subsequently, remanded in revision, by these High Court and hence this petition.

3. The suit was instituted on 15-10-1992 at a time when Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation II of 1975 was in force. The suit was still pending when Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation II of 1994 was promulgated on 14-11-1994. The suit remained pending for almost five years thereafter when on 3-5-1999 it was dismissed by the trial Court; the First Appellate Court upholding the dismissal on 5-5-2000. The main ground that prevailed with the High Court was that after promulgation of Regulation II of 1994, no suit could have been tried under the procedure laid down by the Regulation II of 1975.

4. The crux of the objection is not with regard to the entity of the Presiding Officer because, he or they, are the same under both the Regulations. The objection is with regard to the procedure laid down under the subsequent Regulation which, it is said, was not followed. The dispute, therefore, is taken to be restricted to the procedure adopted by the trial Court which otherwise had the jurisdiction to adjudicate upon the subject-matter. This Court in the case of Muhammad Swaleh PLD 1964 SC 97 has held that every irregularity or illegality in exercise of jurisdiction will not render the order of Court void and without jurisdiction. Any party aggrieved of such irregularity has to further show that there was such violation of statutory provision which rendered proceedings coram non judice. It is a known principle of law that .a procedural irregularity cannot be allowed to stand in the way of justice unless the irregularity has caused a serious miscarriage of justice.

5. This Court in case of Sir Zafrullah Khan PLD 1964 SC 8650 has further held that a procedural defect is closely linked to the prejudice caused thereby and the party so prejudiced must itself raise such objection. In case a party does not raise any objection, the Court should C not do it suo motu, for, it stands waived by the party concerned. This even otherwise is the basic impression of section 99 of the C.P.C. pertaining to appeals, laying down that no decree is to be reversed or modified for error or irregularity not affecting merits or jurisdiction.

6. We have already held that in the instant case the question of jurisdiction, as such, is not and cannot be disputed and hence mere irregularity in procedure, unless objected to by the party aggrieved, should not be taken such a serious notice of by even an Appellate Court, much less a revisional Court, as done in the instant case. It may be recalled that this objection qua procedure was never raised by any of the parties either before the trial Court or before the First Appellate Court or before the High Court and hence should not have been suo motu taken up by the High Court.

7. Section 5 of Regulation II of 1994 defines entity of a Court or Judicial Officer wherefrom it transpires that the trial Court had the jurisdiction vested in it to try the present dispute. Section 7 of the Regulation provides for the appointment of mediator. For sake of convenience the section is reproduced below:--

"7. Power to appoint mediator .--- Where the parties to a dispute triable under this Regulation agree, the Court may refer it to one or more mediators appointed by mutual consent of the parties for its resolution in accordance with the Shariah. "

It clearly requires that a mediator can a appointed only where parties to a dispute agree to such appointment. In the instant case none of the parties ever initiated for the appointment of mediator and hence this procedural provision was not necessarily to be followed by the Court merely because the law had a provision for it. Moreover, under section 10 of the Regulation above, the Government had made rules as Provincially Administered Tribunal Areas (Nifaz-e-Nizam-e-Shariah) Rules, 1994, Rule 3(8) is relevant in this behalf which provides that the reference to mediators should be encouraged among the parties. Sub-rule (8) undoubtedly provides that such reference to mediators shall be made at the initial stage of each case if the parties agree to such reference. If we revert to the stage of the present case, the day when Regulation 11 of 1994 was enforced, the evidence of the plaintiff stood already recorded and a few witnesses of the defendant had also been examined. That being not an initial stage, rather the final stage by all means. no meditation could have been resorted to.

8. The controversy can be looked at from another angle as well. It may be observed that the suit remained pending from 1992 to 1999 when Regulation 11 of 1994 was promulgated on 14-11-994. The question arises as to whether, at the initial stage when Regulation II of 1975 was enforced, could the matter be referred to the mediators under that law and had the Court failed to follow the law. The answer to the said question is emphatically in negative because under section 3, subsection (2-c) of Regulation II of 1975 the matter could never have been referred to the mediators because six to seven defendants in the plaint and successive amended plaints were the Government of N.-W.F.P. and the functionaries thereof. Even, under the law prevailing at the time of institution of suit and at the initial stages, the matter was not to be decided even under Regulation 11 of 1975 because of Government and the functionaries being a party.

9. Learned counsel for the petitioners categorically stated at the bar that by the time the suit was decided in the trial Court, even the notification qua the mediators had not been published. Another most important aspect of the matter is that even if after remand, one of the parties does not agree to mediation, the whole exercise would be futile altogether. The learned counsel speaking on behalf of the petitioners submitted that his clients would not agree for mediation.

10. As a sequel to the above discussion, we are of the considered view that the vested jurisdiction of the trial Court being not disputed, no procedural defect can be taken notice of unless it is raised by the party concerned or unless it has resulted into miscarriage of justice. We further hold that such mediation could have been done only at the initial stage and not at the final stage to which the trial had reached. We could not be convinced at all by the opposite side as to what injustice had been I done by not referring the case to mediators, especially, when such reference cannot at all be made unless agreed upon by both the parties. The repealing as well as the saving clause under section 11 of Regulation II of 1994 also does not furnish any adverse interpretation.

11. Consequently, the petition, after conversion into appeal, is accepted. Civil Revision No.382 of 2000 filed before the High Court is revived and the case is remanded to the High Court for decision on merits.

S.A.K./S-49/S Appeal accepted.