PLJ 2015 Peshawar 55 (DB)
Present: Abdul Latif Khan and Ms. Musarrat Hilali, JJ.
versus
W.P. No. 2277-P of 2014, decided on 20.11.2014.
----Art. 199--Constitutional petition--Order passed by board of revenue in review petition was challenged--M.B.R. had not decided lis pending before it with conscious and application of independent mind--Validity--It is by now established that Court of law or even quasi judicial tribunal has to decide matter with aid of reasons so that person loosing case would go with an impression that order passed against him is not result of whim and caprice--It is coveted goal of administration of justice is that justice should not only be done but to be manifestly seen to be done, a speaking one rather than groundless order is imperative, nay indispensable. [P. 57] A
----O. XLVII, R. 1--Review of judgment--Consolidated judgment cannot be delivered in revision petitions filed before Board of Revenue--Validity--Petitioners could not be termed at fault and cannot be held responsible for an act of Court through which consolidated order has been passed by M.B.R. being highest forum in revenue hierarchy as jurisdiction to entertain proceedings against order passed by lower forums in hierarchy and there exists no bar to decide both revision petitions with single judgment as these pertains to setting aside ex-parteorders and not regarding merits of case--No legal bar to pass consolidated order as parties and property is same--Relief of partition and recovery of produce claimed by same applicants against almost same respondents have been sought--Impugned order has been passed in a slipshod manner by holding consolidation as error on face of record in which is misplaced. [P. 58] B
----S. 8--Visitorial jurisdiction--Insignificant errors--Scope of review than scope of appeal--Court of review could not sit as a Court of appeal against its own order though M.B.R. has been empowered u/S. 8 of Board of Revenue Act 1957, however it did not empower successor member to re-hear matter on merit as in instant case nor has been bestowed any visitorialjurisdiction to correct error--Once an authority has exercised its jurisdiction then matter cannot be re-opened as it becomes functus officio. [P. 60] C & D
----Scope of--Scope of review is very limited and it can only be exercised in case of discovery of new and important matters or evidence which after exercise of due diligence was not in knowledge of party for review or some mistake or error apparent on face of record of case--It is by now settled principle of law that omission of Court if any do not injure a litigant in any manner. [P. 60] E & F
Date of hearing: 20.11.2014.
Judgment
Abdul Latif Khan, J.--This Constitutional petition has been preferred against the order dated 24.4.2014, passed by learned Senior. Member Board of Revenue, KPK, Peshawar, whereby the review petition filed by respondents against order dated 27.3.2013 was allowed.
2. Arguments heard record perused.
3. A perusal of record reveals that the respondents filed application for partition of land as well as application/suit for recovery of produce in revenue hierarchy wherein the petitioners were placed ex-parte on 7.3.2011 and 30.4.2011. The respondents filed execution petition and on acquiring knowledge of ex-parte decrees, the petitioners moved applications for setting aside orders in both the proceedings which were dismissed up to the Court of Commissioner Mardan. Two separate revision petitions Bearing Nos. 76/12 and 153/12 were filed by petitioners before Senior Member Board of Revenue, who on 27.3.2013 vide consolidated judgment allowed both the petitions, reversed the orders of lower Courts with the direction to the original Court to complete the proceedings within two months positively. The respondents filed review petition against the consolidated order in cases No. 76/12 and 153/12 passed on 23.3.2013, before the same Court i.e. Senior Member Board of Revenue, which was allowed through impugned judgment passed on 24.4.2014. The operative part of the judgment is reproduced for convenience:
“From the concluding paragraph of may predecessor's judgment it is clear that he mistakenly decided the review against the produce suit also. As this is a mistake and error apparent on the face of record, this review petition is allowed. Office is directed to list the Review Petitions No. 76/12 and 153/2012 separately and to be heard separately. Parties to come up for further proceedings on 15.5.2014.”
4. A look of the order reveals that the learned Senior Member Board of Revenue has not decided the lis pending before it with conscious and application of independent mind and that is why it is deficit of reasons. It is by now established that Court of law or even quasi Judicial Tribunal has to decide the matter with the aid of reasons so that the person loosing the case should go with an impression that the order passed against him is not the result of whim and caprice. It is coveted goal of administration of Justice is that justice should not only be done but to be manifestly seen to be done, a speaking one rather than groundless order is imperative, any indispensable.
5. Quite apart from this the legislator has entrusted the duty upon the Court of appeal/revision to give its own finding by applying its independent judicial mind. The impugned order does not contain any provision of any enactment whereby the consolidated judgment cannot be delivered in two revision petitions filed before learned Senior Member Board of Revenue. The petitioners have filed separate Petitions Bearing No. 76/12 and 153/12 for the reason that there would two applications, one for partition and other for recovery of produce. However the object of both the petitions was to set aside ex-parte proceedings passed by the lower revenue Courts/Officers and for this very reason the learned Senior Member Board of Revenue in its judgment, dated 27.3.2013, passed consolidated order and remanded the case. The petitioners could not be termed at fault and cannot be held responsible for an act of the Court through which consolidated order has been passed by the Senior Member Board of Revenue being highest forum in the revenue hierarchy as the jurisdiction to entertain the proceedings against the order passed by lower forums in said hierarchy and there exists no bar to decide both the revision petitions with single judgment as these pertains to the setting aside ex-parte orders and not regarding merits of the case. Even if the merits of the case are involved there is no legal bar to pass the consolidated order as the parties and property is same. However the relief of partition and recovery of produce claimed by the same applicants against almost the same respondents have been sought. The impugned order has been passed in a slipshod manner by holding the consolidation as error on the face of record in which is misplaced.
For convenience the relevant sections are reproduced as under:--
O. 47--1 of CPC, Application for review of judgment--
(1) Any person considering himself aggrieved.--(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent he can present to the Appellate Court the case on which he applies for the review.”
Section 163. of the W.P. Land Revenue Act, 1967.--(1) A Commissioner Collector or an Assistant Collector, may at any time, on his own motion, review any order passed by himself or any of his predecessors in office, and on so reviewing modify, reverse or confirm the same.
(2) Any person considering himself aggrieved by an order passed by a Commissioner, Collector or an Assistant Collector and who, from the discovery of new and important of evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was passed or an account of some mistake or error apparent on the face of record or for any other sufficient reason, desires to obtain a review of the order passed against him, may apply for review of the order to the Commissioner, Collector or Assistant Collector, as the case may be, and such officer may modify, reverse or confirm any order passed by himself or by any of his predecessor-in-office.
Provided that:--
(a) An order passed by his predecessor-in-office shall not be reviewed under sub-section (1) of sub-section(2) by the:--
(i) Commissioner, without first obtaining the sanction of the Board of Revenue;
(ii) Collector without first obtaining the sanction of Commissioner and no order shall be reviewed by any other Revenue Officer, without first obtaining the sanction of the Revenue Officer to whose control he is immediately subject.
(b) An application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order, or unless the applicant satisfies the Revenue Officer that he had sufficient cause for not making the application within that period;
(c) An order shall not be modified or reversed unless reasonable notice, has been given to the parties affected thereby to appear and be heard in support of the order;
(d) An order against which an appeal has been preferred shall not be reviewed.
(3) For the purposes of this section the Collector shall be deemed to be successor-in-office of any Revenue Officer of a lower class who has left the district or has ceased to exercise powers as a Revenue Officer, and to whom there is no successor-in-office.
4. An appeal shall not lie from an order refusing review or confirming on review a previous order.
Section 8 of The W.P. Board of Revenue Act, 1957. Review of Orders by the Board.--(1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matters or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record (or for other sufficient reason) for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as circumstances of the case require.
2. every application for a review of a decree or order under sub-section (1) shall be made within ninety days from the date of that decree or order.
6. A look of the above provisions would reveal that the Court of Review could not sit as a Court of appeal against its own order though the Member Board of Revenue has been empowered u/S. 8 of West Pakistan Board of Revenue Act, 1957, however it did not empower the successor member to re-hear the matter on merit as in the instant case nor has been bestowed any visitorial jurisdiction to correct the error if any passed by the Member. The record or evidence could not be scrutinized and even insignificant errors would not empower the Reviving Officer nor furnish jurisdiction to interfere with the matter as the scope of Review is altogether very limited than the scope of appeal. Once an authority has exercised its jurisdiction then the matter cannot be re-opened as it becomes functus officio. Needless to mention that scope of review is very limited and it can only be exercised in case of discovery of new and important matters or evidence which after the exercise of due diligence was not in the knowledge of party for review or some mistake or error apparent on the face of record of the case. In the instant case no error or mistake apparent on the face of record is available as the error must be so manifest and clear that the Court could not permit the same to remain on record. Review cannot be entertained on the ground that Court took an erroneous view or that another view on consideration was possible. The instant matter has not been decided on merit rather only the consolidation of two Civil Revisions which is pure act of Court, has been based to reverse the order passed by the Reviving Officer which does not come within the ambit of review. It is by now settled principle
of law that omission of Court if any do not injure a litigant in any manner.
7. As such the impugned order has been passed without the aid of any reason which is hereby reversed and order of respondent/Reviving Officer dated 27.3.2013 is restored with the direction to the trial Court to comply the proceedings within shortest possible time but not later than two months positively.
(R.A.) Case remanded
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