1987 PLP 1470 (SCMR)

SAAD SAOOD JAN, J.‑‑In this petition for special leave to appeal the dispute between the parties relates to an evacuee house situate in Choona Mandi, Lahore. There were two P.T.Os in respect of this house. One was in the name of the petitioner; it was issued on 24‑3‑1962 in pursuance of an order allegedly made by a Deputy Settlement Commissioner on 21‑5‑1960 on a C.H. form filed by him. The other was issued‑ in favour of respondent No.1, an associate of one Bassa, in pursuance of the order, dated 8‑5‑1962 made by the Deputy Settlement Commissioner on an N . C . H . form submitted by Bassa. Later a P. T . D was also issued in favour of respondent No.1.

2. The existence of two P.T.Os. in respect of the same property led to protracted litigation between the parties which approached the High Court thrice in writ jurisdiction. On each occasion, the High Court set aside the orders of the Settlement authorities and remanded the case for a fresh decision. In pursuance of the last order of remand the Settlement Commissioner held an inquiry and inspected the house. By his order dated 15‑8‑1978 he held; (1) the petitioner was not in possession of the house on 20‑12‑1958, (2) Bassa was never in occupation of any portion of the house, (3) neither the petitioner nor Bassa was entitled to the transfer of the house, and (4) the house was divisible. Accordingly, he directed that the house be disposed of according to law relevant on the subject. Respondent No.1 challenged the order of the Settlement Commissioner in writ jurisdiction in the High Court. In this writ petition he did not implead the petitioner as a party. A learned Single Judge in the High Court accepted the writ petition and declared the order of the Settlement Commissioner to be null and void in so far as it related to the P. T . D already issued in favour of respondent No.1. The petitioner seeks leave to appeal from this Order.

2. This petition is barred by 107 days. The petitioner has applied for condonation. He states that as he was not impleaded as party in the writ petition he was unaware of the order of the High Court and that he learnt about the said order on 4‑7‑1986 when he received a notice from the Excise and Taxation Department. In view of the circumstances mentioned by the petitioner we condone the delay.

3. The main contention on behalf of the petitioner is that in all the proceedings which were taken both before the High Court and the Settlement authorities prior to the present writ petition he was a party and he had seriously contested the claim of respondent No.1 to the transfer of the house. The High Court ought not to have therefore decided the present writ petition without giving him an opportunity of being heard, particularly when he was in possession of the house, even though after the target date, and was as such entitled to its transfer on that ground. Apart from that, as the house was divisible respondent No.1 could not get the whole of it transferred in his favour.

4. The contentions raised on behalf of the petitioner need examination. Leave to appeal is granted. Security for costs in the sum of Rs.2500/‑. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any. A.A./M‑125/S Leave granted.