1979 PLP 287 (SCMR)

NASIM HASAN SHAH, J.‑This is a petition for leave to appeal against the Order dated 11‑1‑1977 passed by the Lahore High Court in W. P. 39/R of 1977 which was disposed of in terms of making certain observations and direction issued to the petitioner to approach the Deputy Settlement Commissioner for the redress of his grievance. The dispute relates to property No. N.W.IX.6‑14 a house situate in Shahdra, Lahore which was transferred to one Mst. Kaniz Fatima with whom Ghulam Abbas claims to have associated. On the alleged failure on her part to clear the instalments, the property was resumed after a show‑cause notice was issued to her, and the property put, to auction, which was purchased by the petitioner, in whose favour it was confirmed and a P. T. D. said to be issued. Soon after the auction was confirmed as aforesaid, the associate of Mst. Kaniz Fatima, i.e. respon dent No. 4 filed a Revision Petition and also sought to obtain an Order of Stay against the issuance of the P. T. D. to the petitioner. Before he was successful in obtaining such an Order, a P. T. D. was issued to the petitioner. The Revision Petition itself was subsequently accepted and the case remanded to ascertain if the instalments had been paid by the respondent No. 4 'who claimed; relying upon certain entries, to‑have made the payment. On 13‑3‑1971 the D. S. C. felt that the amount appeared to have been adjusted but ordered that the Compensation Book to be located so that the authenticity of the claim could be conclusively determined. On 26‑6‑1971 he was of the view that the entries relied upon by the respondent were forged. Meanwhile the petitioner had 'appealed against the Interim Order of the D. S. ‑C. ‑dated 13‑3‑1971. Before order on this appeal could be announced, the D. S. C. retired and it was later disposed of as a Revision Petition on 3‑4-1974 by another Additional Settlement Commissioner who held that the petitioner having been issued a P. T. D. the same was immune from interference by any Settlement Authority. Despite this, the respondent No. 4. made certain Miscellaneous Applications and a Revision. Petition arising there from unsuccessfully, whereupon he filed W. P. No. 1376/R of 1976 in the High Court. On 28‑9‑1976. an. Interim Order that the D. S. C. should be moved to ascertain whether adjustment of price .in respect of the property had been made or not, was passed by the High Court, in pursuance of which the D. S. C. assumed ‑jurisdiction, and: decided to cancel the .Transfer Order in favour of the petitioner on 16‑10‑1976. In view of this the said Writ Petition was withdrawn. Through Writ Petition No. 39/R of 1977 the petitioner challenged the Order of the D. S. C. dated 16‑10‑1976 whereby his P. T. D. was cancelled. This Writ Petition was dismissed in limine but it was observed that as the petitioner had not been heard by the D. S. C. before the impugned order dated 16'‑10‑1976 adversely affecting the petitioner, was passed, the D. S. C. should pass an Order only after hearing both the parties. To obviate any objection to the competency of the D. S. C. to rehear the matter it was clarified that he had the necessary power in view of the decision of this Court reported in P L, D 1963 S C

310. The main argument addressed 'to us is that while disposing Writ Petitions (Non. 1376/R of 1976 and 39K/R of 1977) on both occasions the High Court had passed, Orders in the absence of the respondent in each Writ Petition which is not proper. It is submitted that the petitioner's P. T. D. had been cancelled but the Order of the High Court is silent in this point. Although there is some force in what the petitioner says, yet one thing cannot be overlooked and it is that no authority whatsoever has, in the presence of both the parties, finally decided whether the respondent No. 4 had made the requisite deposit, regarding the transfer price. Clearly, the final adjudication of the rights of the parties depends upon the determination of this question. We would, therefore; observe that the payment of the transfer price is a matter which should, be resolved in the first instance. Accordingly, the Order of the High Court is clarified to the extent that if before the D. S. C. who shall hear both the parties as directed by the High Court, it is not established that the transfer price was paid by the respondent No. 4, the P; T. D: issued to the petitioner, should stand revived. This petition is disposed of in the above terms. Order accordingly.