P L D 1964 Supreme Court 236 (PLP)

It is impossible to read the Custodian's order without seeing that he has honestly considered all the relevant circumstances bearing on the question whether the sale should be confirmed or not. This being so, it is not for this Court to say while exercising its limited jurisdiction in such matters that there was something he had considered which he ought not to have considered, and something he had not considered which he ought to have considered and so his order was bad. This would be equivalent to saying that his order could be reviewed by this Court. I think we would be exceeding our jurisdiction if we attempt to review a judgment the jurisdiction to form which the Legislature has confined to the Custodian and the Custodian alone. It is true that notice under rule 12(5) had not been served on the appellant ; but the fact remains that in the revision taken by him the whole circumstances of the case were placed before the Custodian and he after fully considering them affirmed the order of the Additional Custodian confirming the sale. It cannot therefore, be said that he has not acted in a judicial manner. In the Act the Custodian's power has been expressed in words of the widest amplitude. Whether an application is competent, whether it is in proper form, and whether it has been preferred within the prescribed time, are all matters for decision of the Custodian. Even if he decides these questions wrongly, u this Court I think, cannot interfere with his order. The question thus agitated in this appeal do not seem to be questions which bear upon the jurisdiction of the Custodian or his authority to entertain them. In these circumstances it cannot be said that he acted without jurisdiction, or in excess of it, or in violation of the principles of natural justice. I would therefore, dismiss this appeal but make no order as to costs. B. Z. KAIKAUS, J.‑This is an appeal by special leave against the order of the Custodian of Evacuee Property dated the 19th November 1960, dismissing a revision petition against the appellate order of the Additional Custodian confirming two transactions of sale of evacuee property. It is necessary to state the facts in some detail. By a sale deed which was executed on the 19th December 1946, R. M. Gandhi sold plot No. 298, A. M. Quarters, Karachi, to Battan Singh for a sum of Rs. 49,703‑10‑

0. Out of this considera tion Rs. 28,771‑5‑0 were retained by the vendee for payment to the Karachi Estate Board from whom R. M. Gandhi had pur chased this plot. The total area of the plot was 8325 square yards. Battan Singh raised some construction on this plot and on the 11th August 1947, sold 297 square yards out of the total area to Ishar Singh and Amar Singh for a sum of Rs. 31,540 out of which Rs. 17,000 were paid in cash and the balance of Rs. 14,540 was left with Ishar Singh and Amarsingh for payment in eleven equal instalments to the Karachi Estate Board. This sum of Rs.14,540 represented the proportionate amount payable to the Karachi Estate Board in respect of 297 square yards. The deed in favour of Amar Singh and Ishar Singh was presented for registration on the 11th August 1947, but was registered on 16th June 1948. Ishar Singh and Amar Singh in turn sold the property purchased from Battan Singh to Rashid Merwan Irani and Khudadad Ardsher Irani by a sale‑deed dated the 13th September 1947, which was registered on 27th July 1948. The consideration for this sale was Rs. 27,000, out of which Rs. 2,000 were stated to have been paid as earnest money, Rs. 15,000 were stated to have been paid in cash on the day the deed was executed, and Rs. 10,000 were to be paid to the Karachi Estate Board in respect of the balance of the instalments. It was stated in the deed that the vendees were to pay to the Karachi Estate Board either the sum of Rs. 10,000 or such sum as may be found to be payable as the proportionate share of the price which remained payable in respect of the whole plot. Ishar Singh and Barnam Singh were both evacuees. Rashid Merwan Irani and Khudadad Ardsher Irani who are respondents 5 and 6 in this appeal and are hereinafter referred to as such filed an application before the Custodian of Evacuee Property on the 23rd May 1950, under section 16 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, praying for confirmation of the sale in their favour. On the 14th of October 1950, Mr. Akbar Hussain, the then Custodian of Evacuee Property, confirmed the sale. In September 1947, Ataullah Malik who is the appellant in this appeal had been allotted the plot which had been sold by Ishar Singh and Amar Singh to respondents 5 and

6. On the 5th of July 1951, he applied to Mr. Akbar Hussain, Custodian of Evacuee Property, for a review of his order confirming the sale in favour of respondents 5 and 6 on the ground that the sale in favour of Ishar Singh and Amar Singh itself required confirmation. This application for review came up for decision before Mr. Fayyaz Ali, the successor‑in‑office of Mr. Akbar Hussain on 29th February 1951. Mr. Fayyaz Ali set aside the order of Mr. Akbar Hussain on the ground that there being no confirmation of the sale by Battan Singh who was himself an evacuee there could be no confirmation of the sale in favour of respondents 5 and

6. On the 7th April 1952, respondents 5 and 6 put in another application for confirmation of both the sale‑deeds before the Additional Custodian, Evacuee Property, Karachi. In this application the only persons who were made respondents were Ishar Singh, Amar Singh and Battan Singh evacuees. Neither the appellant, on whose application the previous order of con firmation had been set aside, nor the Rehabilitation Authorities were made parties. It was stated in this application that the order passed by Mr. Akbar Hussain on 14th October 1950, had on review been set aside by the Custodian, but there was no mention of the person who had filed the review application. The evacuee respondents were served by a notice in the Daily Anjam Karachi. The appellant though he had not been made a party was impleaded on his own application. At some stage, it does not appear how, the proceedings were transferred from the Additional Custodian to the Deputy Custodian. There were a large number of hearings and ultimately on the 19th May 1955, the Deputy Custodian after having granted a number of adjournments for the production of the income‑tax clearance certificates rejected the application for non‑production of such certificates. He observed in the order that the income‑tax liabilities of the vendors were above Rs. 30,000 and the total consideration for the sale being only Rs. 27,000 it was doubtful whether the income‑tax would be paid for getting the sales confirmed. While rejecting the application, however, the Deputy Custodian permitted respondents 5 and 6 to move for the revival of the application for confirmation within fifteen days from the date of obtaining the income‑tax clearance certificate. It may be stated here that the application for confirmation was barred by time and an application for condonation of delay had also been filed by respondents 5 and 6 under section 5 of the Limitation Act. On the 16th May 1953, the Deputy Custodian had condoned the delay. Against the order passed by the Deputy Custodian rejecting application for confirmation it was the appellant who filed an appeal before the Custodian. The appellant contended in this appeal that the permission given to respondents 5 and 6 to move for the revival of the application within fifteen days of obtaining the income‑tax clearance certificate was improper. Notice of this appeal was served on respondents 5 and 6, but nobody appeared on their behalf. By an order dated the 9th November 1955, the Custodian deleted the last sentence in the order of the Deputy Custodian by which an application for revival had been permitted. This sentence ran: "It will be, however, open to the applicants to move for the revival of this application within 15 days from the date of obtaining the Income Clearance Certificate." The Custodian observed in his order that the position with regard to evacuee properties which were subject to agreements of transfer had to be finalised. On the 7th May 1958, that is, about three years after the dismissal of the second application for confirmation respon dents 5 and 6 applied to the Deputy Custodian for resumption of the proceedings. They attached to this application a certificate dated the 30th April 1958, granted by the Income‑tax Authorities which stated that there was no objection to the confirmation of the transfer mentioned in the certificate. In the particulars of the transfer stated in this certificate the only person mentioned as the vendor was Battan Singh while respondents 5 and 6 were mentioned as transferees. The certificate obviously related only to the liability of Battan Singh and was not an income‑tax clearance certificate in respect of Ishar Singh and Amar Singh whom it did not mention at all. This application as already stated was for resumption of proceedings and it was presumably filed on the strength of the permission granted to respondents 5 and 6 to file an application for revival within fifteen days of obtaining the income‑tax clearance certificate. The application made no mention of the appellate order of the Custodian by which he had deleted the last sentence of the order of the Deputy Custodian, thereby setting aside that portion of the order of the Deputy Custodian by which permission for revival had been granted. The number of the original application i.e., F. 3 (22)/52 was mentioned in the heading of the application and it was prayed that the same application may be revived. As the application was for revival the names of the respondents were only shown as "Ishar Singh, Harnam Singh and others." In the original applica tion as has already been stated, only the vendors had been made parties. On the very day on which this application was presented the following order was passed by the Deputy Custodian "The application or case is allowed to be reviewed as per order of previous D. C. Judicial." The words "as per order of previous D. C. Judicial" show that though called a "review" a revival was being allowed on account of the order passed by the Deputy Custodian on the 19th May 1955. No notice of this application for revival was served on any party. By an order dated 30th July 1958, the Deputy Custodian dismissed the application on the merits. The order of the Deputy Custodian shows that he was dealing with the Original Application No. F. 3 (22)/52. He stated in the beginning of his order that notices had been served on the parties concerned through "Anjam" on 16th April 1952. This reference related to the original application and the persons on whom notices were so served were only the vendors. The Deputy Custodian was of the opinion that in the first place with respect to the transaction between Battan Singh and Amar Singh respondents 5 and 6 had no right to apply for confirmation and secondly the consideration for the transfer in favour of the respondents 5 and 6 was "much below the market rates." For an assessment of the market value the Deputy Custodian had inspected the spot. Against the order of the Deputy Custodian respondents 5 and 6 filed an appeal before the Additional Custodian of Evacuee Property. In this appeal too the only persons who were made parties were the vendors i.e., Ishar Singh, Amar Singh and Battan Singh who were all evacuees and as a result no notice was served either on the appellant or on the Rehabilitation Authorities. The Additional Custodian held that respondents 5 and 6 had locus standi to file an application for confirmation. He did not deal with the question of actual payment or the bona fides of the con sideration, but assuming that the consideration mentioned in the deed had in fact been paid, he dealt with the question of adequacy of consideration and said : "there is a presumption that the vendor was sensible enough to obtain adequate consideration for the property sold by him and the burden of proving that the consideration is inadequate lay on the party who alleges it to be inadequate." It is not entirely out of place to observe here that no notice having been served of the application or the appeal on any party except the vendors the Additional Custodian, if he was aware of the persons on whom notice of the proceedings had been served could only have been contemplating an objection by the vendor that the consideration was inadequate and a burden on the vendor to show that it was inadequate. The Additional Custodian found that on the record inadequacy of consideration was not established and on the basis of this finding, by an order dated 10th September 1958, he accepted the appeal and confirmed the transaction of sale. It is a matter of some surprise that neither the Deputy Custodian nor the Additional Custodian examined the Income -tax Clearance Certificate which had been produced by respon dents 5 and 6 which related to Battan Singh alone and which referred only to a direct transfer by Battan Singh in favour of respondents 5 and

6. Section 16 of the Pakistan (Administration of Evacuee Property) Ordinance (now section 20 of the Act) debars the Custodian from confirming a transfer not covered by a proper certificate. It was the duty of the Deputy Custodian and the Additional Custodian to satisfy themselves as to the existence of a proper certificate. It is surprising too that the Additional Custodian neither made the Rehabilitation Authority a party nor dealt with the question of payment and bona fides of consideration. On the 11th December 1959, the present appellant submitted an application in revision before the Custodian against the order of the Additional Custodian dated the 10th September 1958. He stated in this application that as an allottee of the property in dispute he had applied for an order of transfer of the property in his favour and that during the proceedings for transfer he had come to know that respondents 5 and 6 had got the sale‑deeds of 11th August 1947 and 13th September 1947, confirmed. (The order of transfer in favour of the appellant had been passed on the 16th October 1959, but the P. T. O. appears to have been issued subsequently). He attacked the order of confirmation as having been "obtained by concealment of facts, mis‑statement, deception and fraudulently." He pointed out that while the Deputy Custodian in his order of 19th May 1955, had granted respondents 5 and 6 permission to file an application for revival, the Custodian of Evacuee Property on appeal had deleted this part of the order of the Deputy Custodian and the application for revival was incompetent. He alleged that he as well as the Settlement Department had been kept in ignorance of the pro ceedings for revival and that respondents 5 and 6 had not given him any notice for rent in spite of the fact that he was in occupa tion of the property in dispute. He made a vehement attack on the bona fides of respondents 5 and 6 as well as on the genuineness of the transaction which they had got confirmed. He prayed that the order of the Additional Custodian be set aside and that he be also compensated for the loss he bad suffered on account of the fraud of respondents 5 and

6. It was also stated in the application that there was no proper income‑tax certificate which was essential for the confirmation of the sales. During the pendency of the application for revision before the Custodian the Income‑tax Officer, N. C. A. Circle Karachi, informed the Custodian by a letter dated 10th March 1960, that the clearance certificate granted to respondents 5 and 6 on the 30th April 1959, with respect to the property of Sardar Battan Singh had been cancelled and that a sum of Rs. 34,000 was still due from this person on account of income‑tax. It has already been observed that the income‑tax clearance certificate filed with the application for confirmation related only to Battan Singh and with respect to Ishar Singh and Amar Singh no certificate had been produced. The Custodian allowed time to respondents 5 and 6 to secure a fresh certificate. There were some adjourn ments and ultimately on the 25th October 1960, respondents 5 and 6 secured a certificate from the Income‑tax Officer which stated that there was no objection to the confirmation of a sale by three persons i.e., Battan Singh, Ishar Singh and Amar Singh in favour of respondents 5 and 6 for a sum of Rs. 27,

000. It would be proper to observe here that the first income‑tax certificate had been granted to respondents 5 and 6 on the 28th of June 1950, with respect to Amar Singh and Ishar Singh. This certificate was cancelled on the 24th November 1954, on the allegation that it had been "wrongly issued" and that there were income‑tax liabilities outstanding against the evacuee vendor who in this case was Ishar Singh. The second income‑tax certificate of 30th April 1958, which related to Battan Singh only was cancelled on 10th March 1960. The certificate obtained by respondents 5 and 6 on 15th October 1960, states that there is no objection to a transfer by Battan Singh, Amar Singh and Ishar Singh. After the issue of the certificate of 25th October 1960, the Income‑tax Officer, N. C. A. Circle, Karachi, again wrote to the Deputy Superintendent, Enforcement Police, Karachi, on 24‑3‑1962, saying "a sum of Rs. 15,112 is also outstanding against the Sikh evacuees Ishar Singh, Harnam Singh, etc., this was left by an oversight. Now the total liability is Rs. 34,000". The Custodian in the order which he passed on the revision application of the appellant dealt with three matters i.e.‑ (i) the income‑tax clearance certificate ; (ii) the limitation regarding the original application ; and (iii) the consideration with respect to the transaction in dispute. So far as the income‑tax certificate is concerned, the Custodian just referred to the certificate of 25th October 1960, and said that the objection had disappeared. The delay in filing the original application had according to the Custodian been satisfactorily explained because an order of confirmation had first been obtained which had later been set aside. So far as the proof of considera tion is concerned respondents 5 and 6 produced before the Custodian on the 19th November 1960, the very day on which he passed the order, an affidavit of one Mr. Dhanjishaw Cowasji Aga in which it was stated that Rs. 2,000 were paid as earnest money by the vendees to the vendors in his office and a sum of Rs. '15,000 was paid in his presence in the office of the Sub- Registrar. This affidavit of Mr. Aga was accepted by the Custodian as sufficient proof of the passing of consideration. The Custodian also observed in the order, though he did not refer to any material on the record in support of it, that instead of a sum of Rs. 10,000 as stipulated in the sale‑deed respon dents 5 and 6 had paid a sum of Rs. 14,892‑4‑0 to the Karachi Estate Board. So far as the adequacy of consideration is concerned the Custodian simply said that for reasons given in the order of the Additional Custodian he held the consideration to be adequate. In this appeal learned counsel for the appellant challenges the order of the Custodian on the following grounds :‑ (i) That the application for revival or for resumption of proceedings was not competent because in the first place the Deputy Custodian had no jurisdiction to pass such an order and in the second place the Custodian had by his order dated 9‑11‑1955, set aside that portion of the order of the Deputy Custodian which permitted withdrawal. The application for revival was merely based on the order of the Deputy Custodian which had been set aside and it had been entertained by the successor of the Deputy Custodian because he assumed that the order of his predecessor had not been set aside. The whole basis, therefore, of the application for revival was non- existence. (ii) That the application was fraudulent. It suppressed the fact that the order permitting withdrawal had been set aside. It also deliberately did not show as a party the appellant, who had got the first order of confirmation set aside by review, who was allottee of the property and in possession of it, and who was a party of the previous proceeding in which the revival had in the first instance been ordered. Respondents 5 and 6 also did not implead the Rehabilitation Authorities. (iii) That neither the appellant nor the Rehabilitation Authorities had notice of the proceedings and, therefore, quite apart from the question of fraud the whole proceedings before the Deputy Custodian were without jurisdiction and null and void. (iv) When it was suggested to learned counsel for the appellant that the application for revival may be treated as a fresh application, he contended‑ (a) that the fresh application was barred by section 43 of the Pakistan (Administration of Evacuee Property) Ordin ance ; (b) that the fresh application would be time‑barred and there was no extension of time by the Deputy Custodian, the Additional Custodian or the Custodian in accordance with section 5 of the Limitation Act ; (c) that the rules framed under the Pakistan (Administration of Evacuee Property) Ordinance necessitated that he as well as the Rehabilitation Authority be made parties to an applica tion for confirmation of sale and that notice of application be served on them and on account of failure to comply with statutory rules and a principle of natural justice, the proceed ings would be without jurisdiction ; (v) that the Custodian had acted without jurisdiction in receiving in evidence an affidavit sworn in 1952 for the first time on the day when he passed the order without giving the appellant an opportunity of contesting the affidavit ; (vi) that there is no proper legal proof on the record either of the passing of consideration or its adequacy and the Custodian has not dealt with it in a manner which would satisfy the requirements of law ; (vii) that the first transaction, i.e., the sale in favour of Battan Singh by R. M. Gandhi also required confirmation ; and (viii) that there was no proper income‑tax clearance certificate before the Custodian. Mr. Brohi who appears for respondents 5 and 6 does not contest that in view of the order of the Custodian dated the 9th November 1955, an application for revival was not competent. He contends, however, that the application for revival can be treated as a fresh application and he does not accept that there was any fraud in presenting the application for revival. Accord ing to him respondents 5 and 6 had no knowledge of the order passed by the Custodian on 9th November 1955. He even urged that no notice of the appeal in which the order dated 9-11‑1955, was passed was properly served on respondents 5 and 6, but we did not allow him to contest the service of notice as the point had not been taken either before the Custodian or in the concise statement filed on behalf of respondents 5 and

6. With respect to the contention of learned counsel for the appellant that if the application for revival was treated as a fresh application it should be dismissed as time‑barred because there was no application for extension of time, Mr. Brohi's reply is that the Custodian should be deemed to have extended time for the filing of a fresh application by his order dismissing the revision petition. As regards the plea of learned counsel for the appellant that the proceedings were null and void for want of service of notice on the appellant and the Rehabilitation Authorities, the answer of Mr. Brohi is that it was open to the appellant to have applied to the Custodian for an opportunity to lead evidence when he filed his application in revision and as he failed to do so he had no right to agitate this point before the Supreme Court. The sale by R. M. Gandhi in favour of Battan Singh does not according to Mr. Brohi require confirmation by the Custodian because the sale was of 19th December 1946. Mr. Brohi also does not accept that a second application for confirmation would not be competent. Mr. Sayeed A. Sheikh has appeared for the Custodian. He has made no substantial addition to the pleas put forward by Mr. Brohi. The Custodian has filed a concise statement and that statement too does not disclose any further plea. I would in the first place deal with the contentions as to the need of confirmation for the sale by R. M. Gandhi and the utter incompetence of the second application for confirmation because if either of these contentions has force this appeal must succeed and the order of the Custodian should be set aside. The Pakistan (Administration of Evacuee Property) Ordinance is effective so far as transfers by evacuees are concerned from 1‑3‑1947. Even if a person became an evacuee after that date any transfer by him made on or after the 1st of March 1947, would have no effect in law till it was confirmed by the Custodian. On this point there is no contest between the parties. The contest is due to the fact that according to Mr. Mahmud Ali the transfer took place on the 14th March 1947, when the sale‑deed was copied into the relevant book in the office of the Sub‑Registrar while according to Mr. Brohi the transfer took place on 19‑12‑1946, and is therefore outside the mischief of the Pakistan (Administration of Evacuee Property) Ordinance. The sale‑deed had been presented for registration on the very day on which it was executed i.e., the 19th December 1946. The Sub‑Registrar made the usual endorsement on the back of the deed on the same day saying that the executant had admitted execution and that a sum of Rs. 16,932‑5‑0 had been paid to the vendor in his presence. However, the sale‑deed was copied into the relevant book on 14‑3‑1947, and it is on this day that the endorsement as to its having been "registered" was made by the Sub‑Registrar. In accordance with section 60 of the Registration Act such an endorsement can only be made after the document has been copied into a book. The contention of Mr. Mahmud Ali that registration took place on 14‑3‑1947, is based on section 61 of the Registration Act which it would be convenient to reproduce here "61.‑(1) The endorsements and certificates referred to and mentioned in sections 59 and 60 shall thereupon be copied into the margin of the Registration‑book, and the copy of the map or plan (if any) mentioned in section 21 shall be filed fn book No. 1. (2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration. or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section

52. It is true that in accordance with this section registration of a document is to be deemed completed when the endorsements and certificate mentioned in sections 59 and 60 have been copied into the margin of the Register‑book. So far as the document itself is concerned, it is to be copied into a book before the certificate of registration under section 60 is endorsed on the document: But the duty of a person who wants to get a document registered is finished when he presents the document for registration. The endorsements and entries in the books are the duties of Registra tion Department and it does not seem reasonable that a person should be prejudiced by the fact that the entries were not made expeditiously. In accordance with section 52 "every document admitted to registration shall without delay be copied in the book appropriated therefore according to the order of its admission." In a case where the question is whether a person had notice of a registered document relating to a particular property .it would be reasonable to hold that as long as that person is not in a position to know whether there exists an entry in the books relating to that property he should not be deemed to have notice of registration. But considerations are not the same when the question is as to the competence of a person to make a transfer. It is not necessary, however, to labour this point further or to decide it finally because of section 47 of the Registration Act which is in the following words "

47. A registered document shall operate from the time from which it commenced to operate if no registration thereof had been required and not from the time of registration." This section is a complete answer to the contention that title passed at the time of registration. When an unregistered deed is executed, a deed which requires registration, transfer of title remains in abeyance till the deed is registered, but as soon as it is registered the transfer operates in the words of section 47 not G from the date of the registration but from the date on which it would, if no registration was needed, have taken effect. So even if the sale‑deed in dispute was registered on 14‑3‑1947, the transfer took place on the 11th December 1946, and the transaction did not require confirmation by the Custodian. For the contention that a second application for confirmation was not legally competent at all Mr. Mahmud Ali relied upon section 43 of the Pakistan (Administration of Evacuee Property) Act. It is provided in section 43 that any order passed by a Custodian (which expression includes an Assistant, Deputy or Additional Custodian) shall subject to the provisions relating to appeal, review and revision be final. Learned counsel contended that as the order dismissing the application implied a refusal to confirm this refusal was final and a new application was incompetent. Learned counsel referred to that part of section 16 wherein it is provided that if income‑tax clearance certificate is not produced the application shall be dismissed. I find no force in this contention. Whenever there is a condition to be complied with by a party before a proceeding becomes competent the dismissal of that proceeding for failure to comply with the condition precedent does not debar the submission of afresh competent proceeding. Examples of such conditions precedent will be found in the failure to pay Court fees or to deposit one‑fifth of the pre‑emption money in a pre-emption suit or to procure sanction of a liquidation Court for filing a suit against an insolvent. The word "final" in section 43 would only mean that a point which has been decided in a pro ceeding cannot be reagitated. If the application was dismissed on the merits, the merits could not be agitated again, but if the application was dismissed because of want of a income‑tax clearance certificate the only point that was decided was that a valid clearance certificate did not exist. That point cannot be agitated again except by way of appeal, review or revision, but the filing of afresh application which is supported by a clearance certificate is not incompetent. Having cleared the ground by a disposal of these two matters I proceed to deal with the other points raised. I will deal firs with the question whether, if we were to accede to the request of Mr. Brohi and treat the application for revival as a fresh application, this appeal could be dismissed. Even if the applica tion for revival were treated as a fresh application there will still be two reasons why the order under appeal could not stand. The first is that the fresh application would be time‑barred and there is no application for condonation of delay under section 5 of the Limitation Act at all. In accordance with rule 17‑A of the rules framed under the Pakistan (Administration of Evacuee Property) Ordinance, section 5 of the Limitation Act is applicable to I proceedings before the Custodian. Mr. Brohi has contended that the Custodian should be deemed to have decided the question of limitation when he dismissed the revision application of the appellant. It is impossible to accept such a contention. The Custodian was not even conscious of the fact that the application for revival was incompetent and he certainly never applied his mind to the question whether time should be extended after treat ing it as a fresh application. Under section 5 of the Limitation Act there has to be a finding of sufficient cause. In pre‑Partition India sufficient pause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected. However; at least in determining sufficient cause while dealing with the same expression in Order IX, rule 8, C. P. C. and Order IX, rule 3, G. P. C. the Courts had been lenient and had been condoning some negligence i. e. negligence to the extent to which it is regarded as human though they never condoned gross negligence. At the same time the Courts had always been strict in demanding proof of sufficient cause for every day which had expired after the ordinary period of limitation. In the present case the question as to whether time should be extended if the application for revival was treated as a fresh application was not at all an easy one to decide. The first application which was dismissed on the ground of want of a clearance certificate was itself time‑barred and the Deputy Custodian had to pass an order condoning delay. If a time‑barred application be dismissed for want of a certificate and a fresh application be filed what is the principle on which the question of condonation of delay should be decided ? It would be difficult to hold that the failure to obtain a clearance certificate is by itself sufficient cause. It is true that the liability to pay income‑tax is of the vendor, but the fact that the vendor does not pay is not by itself a ground for extension of limitation. The vendor was an evacuee who left the country long ago. He is not interested in paying the income‑tax and if extension were granted on this ground a second application for confirmation could always be filed after getting a certificate. The vendee has to pay the income -tax if he wants to get the sale deed confirmed and can his failure to pay be regarded as sufficient cause ? I have no intention of answering this question so as to affect its decision by the Custodian. I have only pointed out the difficulties of the situa tion and the utter impossibility in the circumstances of imputing any implied decision to the Custodian on the question of sufficient cause. The second reason why the order of the Custodian could not stand is the want of service of notice of the proceedings on parties who ought to have been served. Rule 12 (5) of the rules framed under the Pakistan (Administration of Evacuee Property) Ordinance which relates to proceedings for confirmation of transfers runs "12 (5) The Custodian shall cause a notice to be served on the respondent, and the Rehabilitation Authority of the area in J which the property is situate, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in a newspaper at the expense of the applicant." The rule makes notice obligatory not only, in respect of the Rehabilitation Authority, but in respect of any person interested in or likely to be affected by the result of the application. The appellant was surely a party interested in and affected by the result of the proceedings: He was an allottee of the property in dispute and in possession of it and he would under the Displac ed Persons Act be entitled to its transfer. It is pertinent to observe here that so far as the order of the Additional Custodian is concerned it was, apart from all other considerations illegal on the ground that there was as yet no proper certificate from the Income‑tax authorities so that really we have to consider the position of the appellant at the time when the case came to the Custodian. Before the case came to the Custodian he had secured an order for transfer of the house in his favour on the 16th October 1959. But even when the case was with the Deputy or the Additional Custodian he was an allottee with possession. In fact by virtue of the enactment of the Displaced Persons Com pensation Act which came into force on 26‑3‑1958 he had a vested right with respect to the transfer of the property in dispute. Learned counsel for the appellant contends that the proceedings being in the absence of necessary parties without even an attempt to serve them were null and void and without jurisdic tion. The only reply of Mr. Brohi to this objection is that when the appellant approached the Custodian in revision he should himself have applied for an opportunity to lead evidence and if he did not do so he cannot now attack the validity of the proceedings on the ground that he had no opportunity of being heard. There is little force in the reply of Mr. Brohi and if we consider all the circumstances the argument put forward does not appear to be a possible one. The proceedings before the Deputy Custodian which were being attacked were proceedings for revival of the original application. The plea of the appellant was that the revival was in the first place fraudulent and in the second place wholly incompetent on account of the previous order of the Custodian. It was quite sufficient for the appellant to have simply attacked the proceedings for revival as being of no legal effect for either of these two reasons and to pray that they be quashed. It was not for him to assume that the application for revival will be converted into a fresh application (and as I will presently show there were reasons which may have led to an ultimate refusal on the part of the Custodian to treat the application for revival as a fresh proceeding). But let me even assume that there was no application for revival, but only a fresh application and let me assume further (to none of these assumptions are respondents 5 and 6 entitled) that the application was within limitation, but the appellant had, though entitled to notice, not been served. Would there be under the circumstances any obligation on the appellant to ask for an opportunity to lead evidence ? The proceedings before the Deputy Custodian if they were not totally void for failure to implead necessary parties i.e., the Rehabilitation Commissioner and the appellant would constitute an illegal exercise of jurisdiction and the appellant when he approached the Custodian need only have said that the proceedings were illegal and should be set aside. There is no law which obliges a party against whom an order has been passed without impleading him and without serving him with notice when he was entitled to be served, to put forward before an appellate or revisional Court a plea that he should be allowed an opportunity of leading evidence. He is entitled simply to say, in the absence of any provision of law to the contrary, that the proceedings being illegal should be' set aside. Of course the Custodian could himself offer an opportunity to the appellant to lead evidence (after first con verting the revival proceedings into a fresh application) in order to cure the defect in the proceedings but it may be pointed out that a simple opportunity to lead evidence would not have been sufficient. There would have to be at the same time an opportunity to cross‑examine the witnesses produced by the other party. The whole onus in this case lay on respondents 5 and

6. They would not only have to lead evidence, but one of then who had knowledge of the facts would in accordance with accepted principles relating to production of evidence in civil proceedings have to put himself in the witness‑box and subjects himself toy cross‑examination unless he was not afraid of an adverse inference which might be drawn against him. Rights which parties have in procedure are not to be lightly treated nor can the parties be punished for failure to put forward pleas at stages of a proceeding which they are not by law bound to put forward. It appears to me that in this case not only has there been a failure to comply with a statutory provision as to notice, but there is a gross violation of the principle that orders affecting parties are not to be based without a proper opportunity; of contest. It would be proper here to consider the propriety of the order passed by the Custodian. As has already been stated there was a strong attack by the appellant on the proceedings for revival for two reasons, that is, fraud and incompetence of the application for revival on account of the order of the Custodian forbidding revival. Yet in the order of the Custodian by which he dismissed the revision application of the appellant there is not one word either about fraud or about the order of 9‑11‑1955. Not only that, the Custodian, assuming that the revival proceedings were wholly competent dealt, though is a summary way, with the question of limitation for the original application, and made a statement that the delay had already been condoned by the Deputy Custodian. Coming to the question of consideration so far as the payment of consideration is concerned the Custodian admitted in evidence, apparently, to the surprise of the appellant, on the very day on which he passed the order, an affidavit sworn by Mr. Aga, an Advocate, without affording the appellant an opportunity of meeting this evidence. It may be observed that every person against whore an affidavit is produced is entitled in the absence of special circumstances to have the deponent put in the witness‑box and to cross‑examine him. So far as adequacy of consideration is concerned the Custodian contented himself with saying that he agreed with the Additional Custodian as to his reasons for accepting the adequacy of consideration. I have already stated that according to the Additional Custodian the onus of proving inadequacy was on the party asserting. There was no party before the Deputy Custodian or the Additional Custodian to assert this for only the evacuee vendors had been made parties. I will now consider the question whether we should give a direction that the application for revival be treated as a fresh application. Ordinarily Courts have no objection to treat proceedings of one kind as proceedings of another kind if that becomes necessary for doing justice between the parties and I would have had no objection to allow the application, for revival to be treated as a fresh application were it not for the fact that a plea of fraud has been raised and if this plea be correct I would not he inclined to accede to the request of learned counsel for the respondents. The appellant contends that respondents 5 and 6 with full knowledge of the order passed by the Custodian on the 9th November 1955, suppressed that order and submitted an application in accordance with the permission granted by the Deputy Custodian which permission had been set aside in appeal and they at the same time deliberately did not make either the appellant or the Rehabilitation Authority a party in order that the truth may not be revealed. Learned counsel for the appellant points out that even after obtaining the order of the Additional Custodian for confirmation on 10th September 1958, respondents 5 and 6 kept the matter a secret and made no effort to assert their rights as vendees against the appellant who was in possession. It is during the proceedings for transfer of the house that the appellant came to know of the confirmation. He had received an order of transfer on 16th October 1959. The question of fraud has riot been tried, but it is surely a matter which under the circumstances calls for a decision. Conversion of one proceeding into another is an act of leniency on the part of the Court the object of which is the advancement of justice and such leniency may not be shown in a case where the proceeding sought to be converted is a proceeding conceived in fraud. So instead of deciding the question of conversion of the application for revival into a fresh application ourselves, I think we should leave the matter to be decided by the Custodian. I would, therefore, accept this appeal, set aside the order of the Custodian and remand the case to the Custodian who will either himself or through a subordinate otherwise competent to deal with the matter first decide the question of conversion and if the application for revival be treated as a fresh application further proceedings will be taken as in any original application for confirmation and questions of limitation and merits will be determined. All proceedings shall be taken after notice to the Rehabilitation Authority and the appellant. Costs of this appeal should be costs in the cause. HAMOODUR RAHMAN, J.‑

I have had the advantage of reading in advance the judgments proposed to be announced by my Lord the Chief Justice and my learned brother Kaikaus, J. This appeal by special leave (granted on the 15th of December 1961) is from an order of Mr. Masud Ahmad, Custodian of Evacuee Property, Federal Capital of West Pakistan. By this order the Custodian had refused to interfere in revision with the order of the Additional Custodian passed in appeal con firming certain sales in favour of some of the respondents herein. Such an appeal directly from the order of the Custodian was, no doubt, then maintainable under Article 160 of the late Constitution. But this Court hag consistently held that in exer cising this supervisory jurisdiction given under Article 160 of the late Constitution in an appeal from an order of a Tribunal other than a Court some restrictions have, of necessity, to be imposed. Thus this jurisdiction should not be allowed to be invoked successfully in a case where the Tribunal had "functioned within, the spirit and the intention of the statute that created it and while so functioning had made a real and honest endeavour to judge facts on the evidence and to apply the law to them." (Vide Muhammad Saeed v. Eleetion Petitions Tribunal, West Pakistan) ((1957) 1 P S C R 109=P L D 1957 S C (Pak.) 91). Keeping this principle in view I have carefully examined the facts of the present case and the orders of the Custodian Authori ties, and have come to the conclusion that the appellant has not been able to establish that the Custodian had acted without jurisdiction or had made "no honest effort to arrive at a correct conclusion. The Custodian when passing the impugned order was dealing in revision with an appellate order of an Additional Custodian wherein the facts were fully set out. He was also aware of the fact that the petitioner before him was alleging that the confirmation had been obtained by concealing an earlier order of Mr. Mansur Alam, a predecessor Custodian, who had revoked the permission earlier granted to revive the application for confirmation on receipt of the Income‑tax Certificate. The revision of the order was also sought on the ground that it had been made ex parte without any notice even to the present appellant. I am in agreement with my Lord the Chief Justice that neither the first ground took away the jurisdiction of the Custodian Authorities to entertain the second application for confirmation nor the second rendered the impugned order so defective that it must be set aside. The reasons which have led me to this conclusion are substantially the same as those given in the judgment of my Lord the Chief Justice, which I respectfully adopt and do not propose to repeat. I, therefore, also agree that this appeal muse be dismissed with costs. In accordance with the view of the majority, we dismiss this appeal, but make no order as to costs. A. H. Appeal dismissed.