1988 PLP 516 (SCMR)

NASIM HASAN SHAH, J.--The appellants are the real brothers of the first respondent (who shall be referred to in the sequel as the respondent). The dispute between them relates to a property in Hyderabad which was evacuee property. According to the learned counsel for the appellants, the property consisted of three units of which two had been occupied by one Ismail and Jamal, who became entitled to the transfer of the units in their occupation when Settlement operation began. But the appellants and the respondent claim to have acquired by purchase the rights of these Ismail and Jamal and their claim is that they applied for the units in their possession. Therefore, they had filed a joint C . H . form on 14-7-1959. As their application was allowed, the P.T.O. for the property was issued to them jointly. Additionally, as the respondent was the elder brother, he was acting on their behalf; therefore, he executed a written agreement on 19-6-1961 with the appellants in which he undertook to complete all the formalities for the transfer of the house and undertook that the transfer documents would be in their joint names. But unfortunately, in breach of this undertaking, the respondent managed to obtain the P.T.D. for the entire property exclusively in his own name. Therefore, in May 1971, he served his brothers (the appellants) with a notice informing them that the entire property had been transferred to him. The appellants, therefore, immediately challenged the issue of the P.T.D. exclusively to the respondent in an application before the Deputy Settlement Commissioner. This application was allowed and the Deputy Settlement Commissioner directed that the P.T.D. should be corrected so that the appellants as well as the respondent were shown as the transferees of the house. The respondent challenged this order in an appeal which was dismissed. He then filed a revision, but as the revision met the same fate, he filed a writ petition in the Sind High Court which was allowed on 20-1-1979. Hence, this appeal by leave of this Court. The learned Judge, who allowed the writ petition of the respondent, was of the view that the Settlement Authorities had no power to correct the P.T.D. issued to the respondent in view of the P.T.D. rules as they stood after their amendment in 1961. Learned counsel submitted that the view of the learned Judge was inconsistent with the law declared by this Court in Muhammad Ismail and another v. Settlement Commissioner and another (1973 S C M' R 407). Additionally, he submitted that as the respondent had not come with clean hands, the High Court had erred in law in exercising the discretionary remedy of a writ petition in favour of the respondent. Finally, according to learned counsel, even if the Settlement Authorities did not have the jurisdiction to correct the P.T.D. issued to the respondent, as the P.T.D. had been obtained illegally and dishonestly, the High Court had ample power to order necessary corrections in P.T.D. and should have dismissed the writ petition on this ground. We have heard the learned counsel for the respondents in reply. We do not think that it is necessary to advert to all the arguments raised by the parties because this is a case where the Settlement Authorities, in correcting the P.T.D. had acted to prevent a failure of justice and this Court has repeatedly held that the High Court should not exercise its writ jurisdiction in aid of injustice; see Nawab Syed Raunaq Ali etc. v . Chief Settlement Commissioner and others P L D 1973 S C 236; Wali Muhammad and others v. Sakhi Muhammad and others P L D 1974 S C 106; Syed Ahmad Abbas Zahidi and others v. Settlement Commissioner, Rawalpindi and another PLD 1968 Lah .166; Rahimullah v . District Judge and Settlement Commissioner, Hyderabad and another P L D 1972 Kar. 60; Chief Settlement Commissioner, Lahore v . Raja Muhammad Fazil Khan and others P L D 1975 S C 331; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1,978 S C M R 367; Messrs Khyber Tobacco Co. Ltd., Mardan v. Labour Union and another 1976 P L C 98 and Begum Shams-un-Nisa v. Said Akbar Abbasi and another P L D 1982 S C

413. Thus, if the effect of setting aside the orders of the Deputy Settlement Commissioner, Additional Settlement Commissioner and Settlement Commissioner by the High Court was to restore the improper and unfair P.T.D. obtained by the respondent exclusively in his own name, when the other brothers were entitled to be included in the said P . T. D . the High Court should not have exercised its writ jurisdiction for bringing about such a result. The upshot is that this appeal is allowed. The order of the High Court dated 20-1-1979 is set aside. The parties, however, are left to bear their own costs.