1990 PLP 981 (SCMR)

Date of hearing: 7th February, 1990. ABDUL QADEER CHAUDHRY, J.‑‑The petitioner seeks leave to appeal against the order of the Peshawar High Court, dated 2‑8‑1989 whereby the Writ Petition filed by the petitioner was dismissed.

2. The facts, in brief, are that the disputed shop was purchased by Abdus Samad, the predecessor‑in‑interest of respondents Nos.1 and 2 in public auction for a sum of Rs. 20,

100. The late Abdus Samad entered into an Agreement of Association with the petitioner on 30‑6‑1960. The parties agreed to adjust the auction money of the disputed shop from the petitioner's `Compensation Book, inter alia, on the condition that the amount so adjusted would be re‑paid by late Abdus Samad within the period of lil/2 years and if on the expiry of the stipulated period the transferee failed to pay back the loan, transfer documents would be issued in favour of the petitioner. The agreement of association was accepted by Settlement Authorities. Initially, the P.T.O. was issued in the name of Abdus Samad on 21‑7‑1960. The Claims Commissioner, Pakistan on 28‑7‑1960 declared the petitioner's claim to be bogus and cancelled it in its entirety. Ultimately, this Court vide judgment reported in Muhammad Farooq Imam v. Claims Commissioner P L D 1964 S C 585 remanded the case to the Claims Commissioner. The claim of the petitioner was ultimately restored on 24‑12‑1986. The P.T.D. was issued in favour of respondents 1 and

2. The petitioner on the restoration of claim also moved an application for the issuance of the Transfer Order to him in pursuance of the Agreement of Association. Respondent No.3 rejected the prayer of the petitioner. The petitioner filed a Constitution petition in the Peshawar High Court which was dismissed.

3. Learned counsel for the petitioner has taken exception to the observation of the High Court that Abdus Samad had paid the price of the shop in cash. In fact, no such payment had ever been made. It has been further contended that the observation of the High Court is not correct that there is no agreement that in case of default in payment of amount by Abdus Samad the transfer deed shall be issued in the name of the petitioner.

4. Learned counsel has submitted that it has been expressly provided in the agreement that in case of default in re‑paying the loan, the transfer document would be issued in the name of the petitioner. It has been further submitted that the Agreement of Association was acted upon and amount paid from the Compensation Book therefore the department was not authorised to refuse P.T.D. to the petitioner.

5. The contention raised by the learned counsel requires examination. Leave is granted. Security Rs. 2,

500. Status quo to be maintained in the meanwhile. AA./M‑1269/S Leave granted.