Malik KHAWAJA MUHAMMAD And 24 Others vs MARDUMAN BABAR KAHOL

ORDER

S.A. NUSRAT, J.--This petition for leave to appeal arises out of the judgment of the Baluchistan High Court dated 21-10-1986 whereby a civil revision application filed by the first respondent was allowed. The judgments and decrees passed by the Qazi, Lower Zhob and Ma11is-e-Shoora, Quetta dated 24-10-1982 and 20-2-1986 respectively were set aside as having been passed without proper exercise of jurisdiction. In the result the suit was remanded to the learned Qazi for expeditious disposal within two months from the receipt of the impugned judgment.

2. The dispute in this petition relates to a large tract of district Zhob known as "Nishtri" which is un- surveyed and unsettled. The parties had been in dispute over grazing rights as well as ownership of .The disputed land. The parties to such dispute were descendants of one Sher Mandokhel, who are divided into several Kahols (clans). Initially the proceedings in the matter were started under the Frontier Crimes Regulation (hereinafter called F.C.R.) and the parties were ordered in a revision on 29-7-1950 by the then Agent to the Governor General, Baluchistan to move Civil Court for the redress of their grievances. It appears that several orders were passed under the F.C.R. But the parties were not satisfied and ultimately a suit under section 8 of the F.C.R. Was filed before the Additional District Magistrate, Lower Zhob. The matter was referred to the Council of Elders under the provisions of F.C.R. The Council of Elders unanimously decreed the suit in favour of Usman Kahol against which a revision petition was filed before the Commissioner, F.C.R. Quetta Division, which was dismissed on 3-8-1977. Later, a constitutional petition No.213/77 was filed where the jurisdiction of the F.C.R. Courts and vires of the proceedings taken there under were challenged in view of the promulgation of Civil Disputes (Shariat Application) Regulation, 1976 (hereinafter referred to as the Regulation), and by consent of the parties the High Court of Baluchistan had set aside the orders and the case was referred for trial to the Qazi. Pursuant to such direction, written statement was filed on 12-12-1980 on behalf of Muhammad Azam and 25 others of Babar Kahol (sub clan of Saidal Kahol). Another written statement on 9-3-1981 was filed by some other defendants. The learned Qazi, Lower Zhob, decreed the suit on 10-2-1981 without summoning the parties. An appeal was preferred from the said decision, which was allowed and the case was remanded to the Qazi, Lower Zhob. After such remand, again no summons were issued to the defendants and the learned Qazi proceeded ex parte on 24-10-1982. The petitioners before the High Court (herein respondents) having come to know about the decree on 20-11-1982, filed application for the grant of copies which were supplied to them on 22-11-1983, i.e. After a period of one year. An appeal was thereupon filed before the Majlis-e-Shoora, Quetta Division, duly supported by an application under section 5 of the Limitation Act, 1908, for seeking condonation of delay. This appeal was filed by the people of Babar Kahol through their attorney Haji Sangeen Khan. On 20-2-1986, the learned Member, Majlis- e-Shoora, Quetta, dismissed the appeal as barred by time. This led to the filing of the revision petition by the respondents in the High Court, which was allowed as per impugned judgment.

3. Several objections were raised before the learned High Court including the one with regard to locus standi of the respondents No.14 to 42, which was duly considered by the learned High Court and disposed of with reference to various documents. The objection was ruled out on the ground that the persons concerned were in litigation under F. C. R. And the rules there under and that the petitioners had not taken such objection in their written statements. Besides, it was held that the said respondents, being No.14 to 42, had not filed petition, but were pro forma respondents. The main contention before the High Court was that the respondents herein were condemned unheard, as no summons were issued to them by the Qazi. The learned High Court. After detailed perusal of the order sheet of the proceedings before the learned trial Court, came to hold that the learned Qazi had no jurisdiction to pass ex parte decree when neither summons were issued nor served upon the contesting defendants and further the date on which the said order was passed, was not the date of hearing, but was fixed for filing of the list of witnesses. Thus the announcement of judgment abruptly and passing of ex parte decree was not warranted in law. Further it was held that even while passing the ex parte decree, the discretion had to be exercised judiciously and not arbitrarily.

4. As respects the question of limitation, the learned High Court found that the decree in the suit having been passed in utter contravention of the mandatory provisions of law, such order was a nullity against which no limitation could run. In this connection, reliance was placed on a judgment of this Court in the case of Mst. Rehmat Bibi and others v. Punun Khan and others (1986 SCM RI 962).

5. In arguing this petition for leave, the same contentions as raised before the High Court, were again pressed into service. Besides, it was also attempted to be urged that the respondent No.1 was participating in the proceedings through his attorney Haji Zarif Khan and as such it could not be said that he was not informed of the proceedings. This objection is, however, of no consequence because there were several defendants in the suit. No such objection was raised before the learned High Court and even otherwise the judgment of the High Court shows that several defendants had remained un-served in the case. Besides, we have noticed that on 24-10-1982, the learned Qazi had directed the defendants, who were present, to inform the remaining defendants to file the list of their witnesses. Such course of action, in the absence of proper service of summons on the defendants was uncalled for. The findings in the impugned judgment of the learned High Court are amply justified in the facts and circumstances of the case and the order of remand will adequately meet the ends of justice. The petition, in the circumstances merit no consideration and is dismissed.