1986 PLP 943 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of this Court is directed against judgment dated 6th December, 1973, of the Lahore High Court; whereby a writ petition filed by the appellant was held to have abated. The property in dispute was allotted in favour of the present appellant by the Settlement and Rehabilitation Authorities. Ghulam Farid alias Balmakand claimed this property as belonging to him. On 13th September, 1965 a Settlement Commissioner cancelled the allotment in exercise of power of review and it was held that the property in dispute belonged to Ghulam Farid alias Balmakand. It appears that Ghulam Farid died issueless in 1970. The appellant failed to bring on record any person as legal representative. Learned Single Judge of the High Court dismissed the petition as having abated for the sole reason that none had been impleaded as legal representative of the deceased. Leave to appeal was granted to consider the argument that in a case where a person had died issueless and he has no legal representative his property goes to the state. In the circumstances the High Court should have in exercise of its power under Order I, rule 10, C.P.C. impleaded the State as party to the appeal. To support this plea reliance was placed on Mahomedally Tyebally and other v. Safiabai and others 4 I R 1940 P C

215. Although the learned counsel argued the appeal on the basis of the point noted in the leave granting order but he also sought our permission to bring to our notice another vital fact in this case whereupon he also sought our permission to argue another point of law. One Muhammad Hanif claiming to have some interest in the property had made an application after the death of Ghulam Farid alias Balmakand before the High Court that the writ petition had abated. It was contested by the appellant whereupon an order was passed by another learned Single Judge on 18‑10‑1972 wherein after full discussion on the question of abatement it was held that the writ petition had not abated and accordingly the application filed by Muhammad Hanif, was dismissed. It appears this order dated 18‑10‑1972 was not taken note of by the other learned Single Judge who passed the impugned order dated 6‑12‑1973 whereby the writ petition was held to have abated. Admittedly there was no review application nor there is any purported exercise of jurisdiction of review in the impugned judgment. The order passed on 18‑10‑1972 with regard to the question whether the writ petition had abated with the answer that it had not abated, had attained finality. The other order impugned in this appeal, namely, that passed on 6‑12‑1973, therefore, could not have the effect of nullifying the order effectively passed on 18‑10‑1972. We, therefore, set aside the impugned order, restore the order dated 18‑10‑1972 and remand the case to the High Court for fresh decision in accordance with law. The property in dispute shall not be alienated or otherwise dealt with in pursuance of the impugned order. There shall be no order as to casts. M. Y. H. Case remanded.