2001 PLP 362 (CLC)

M.A. Zafar for Petitioners. Tafazzal H. Rizvi for Respondent No.

1. Khan Zahid Hussain for Respondent No.2. This dispute between the parties relates to Property No.7/19‑20, situate in Mandi Baha‑ud‑Din. According to the facts of the case, vide order, dated 26‑11‑1959 the Deputy Settlement Commissioner transferred the said property in favour of Jangoo and Chota and issued P.T.O. No.23670. Bashir, Sardar and Ibrahim, tiled an appeal before the Additional Settlement Commissioner challenging the said transfer and claiming transfer of three shops in their favour being in possession thereof. The Additional Settlement Commissioner accepted the appeal of Sardar All and Ibrahim and transferred two shops to them, while the appeal of Muhammad Bashir was dismissed on 22‑12‑1959. Against the above, Muhammad Bashir tiled a review, which was dismissed on 25‑1‑1960. Jangoo, Chota and Muhammad Bashir, challenged the orders through revision petition before the Settlement Commissioner. The revision petitions filed by Jangoo and Chota were dismissed, while that of Muhammad Bashir was allowed on 19‑3‑1960. Against the above, Jangoo and Chota filed second revision, which was dismissed on 17‑4‑1960. They filed Writ Petition No.326/R of 1960, before this Court which was accepted and the case was remanded. On remand, the Chief Settlement Commissioner entrusted the matter to the Settlement Commissioner, who vide order, dated 16‑11‑1965, reviewed the earlier order, dated 17‑1‑1960 and restored the original order of the Deputy Settlement Commissioner transferring whole property in favour of the Jangoo and Chota. Accordingly P.T.D., dated 21‑3‑1966, was issued. Against the above, Muhammad Bashir, Sardar and Ibrahim preferred three writ petitions being Writ Petitions Nos. 1636/R to 1638/R of 1965, which were accepted by this Court 1vide order, dated 18‑6‑1974 and one shop each of aforesaid property was transferred to there. It may be pertinent to state here that Jangoo died on 30‑4‑1970 while Chota died on 9‑7‑1971. Anyhow, against the above, the legal representatives of Jaogoo and Chota went in appeals before the Honourable Supreme Court, being C.As. Nos.223 to 225 of 1978 which were dismissed by the Honourable Supreme Court on 5‑11‑1984.

2. After the decision of the Supreme Court of Pakistan the Deputy Settlement Commissioner accordingly amended the P.T.D., dated 21‑3‑1966 vide his order, dated 2‑7‑1985; accordingly the three shops of the lower portion of the aforesaid property were transferred to Sardar Ali, Muhammad Bashir and Ibrahim, P.T.O. No.881, dated 2‑2‑1996, were issued to them. The other portions of the property already transferred in favour of Jangoo and Chota were kept intact. By virtue of the instant suit Khawaja Feroze Din, son of Chota, the predecessor‑in‑interest of the present petitioner filed a civil suit challenging the transfer of these three shops in favour of Bashir etc., which was contested by the respondents and the suit was decreed on 15‑6‑1989. Against the above the respondents preferred an appeal, which has been allowed by the learned Additional District Judge, Mandi Baha‑ud‑Din, on 18‑10‑1994; hence this revision petition.

3. Learned counsel for the petitioners has raised only two contentions; first, that after the passing of the judgment by the Honourable Supreme ‑Court, mentioned above, the legal heirs of Chota and Jangoo were not impleaded as a party before the Deputy Settlement Commissioner, thus, the order is vitiated. Secondly, the Deputy Settlement Commissioner, who passed the order, dated 2‑7‑1985, was not Notified Officer after the repeal of the evacuee laws.

4. Learned counsel for the respondents have stated that the petition is barred by 31 days as the judgment of the Appellate Court was pronounced on 18th October, 1994; copy was procured by the petitioner on 22‑11‑1994, while this petition was filed on 28‑3‑1995. Confronted with the above, learned counsel for the petitioner states that he has filed an application for condonation of delay on the ground that the petitioner was of advance age and she was sick and bed‑ridden.

5. I have heard the learned counsel for the parties. As per the judgment of this Court, dated 18‑6‑1974 in Writ Petitions Nos. 1636/R to 1638/R of 1965, the entitlement of Bashir Ahmad, Sardar Ali and Ibrahim was finally and conclusively determined qua the three shops in question. The appeal filed by the petitioners before the Supreme Court also failed. Thereafter, it was just incidental and ancillary proceedings before the Settlement Authorities to issue P.T.Os. in favour of the named above and accordingly to amend P.T.D. earlier in favour of Chota and Jangoo. This is exactly what has been done by the D.S.C. As the orders of the High Court and the Supreme Court have only been implemented, in which the petitioners had full opportunity of hearing and lost the case, consequently, even if they were not heard by the D.S.C. while passing the impugned order in the suit no prejudice can be said to have been caused to them.

6. As regards the other plea that the D.S.C. was not an Authorised Officer and after the repeal of the evacuee had no jurisdiction to either issue the P.T.O. in favour of Bashir Ahmad etc. or amend P.T.D. in favour of petitioner's predecessor, suffice it to say that this has not been the case of the petitioners in the plaint. Even the petitioners have failed to establish through any evidence on record that the D.S.C: was not an Officer Notified to deal with the matter. As the D.S.C. has passed the order as a Notified Officer the presumption that the notification in this regard had been duly issued authorising him to deal with the pending matter, which was mentioned above, has not been dispelled by the petitioners.

7. Moreover, this revision petition is barred by 31 days and I am not satisfied on account of the reasoning given in the application under section 5 of the Limitation Act for the condonation of delay. The petitioner has not been able to make out a sufficient cause. The copy of the judgment was duly applied by the son of the petitioner, which was supplied to him on 22‑11‑1994, while this revision petition was filed after the lapse of 90 days. In the light of above, the statement of the petitioner that she was bed‑ridden and thus, could not approach this Court earlier cannot be allowed particularly in the situation when no proof has been placed on record about the serious indisposition of the petitioner which prevented her to challenge the impugned Judgment within time. Besides, her son was looking after the] matter and nothing is shown that he was also prevented by a sufficient cause to tile this petition within time. In the light of above, this petition has no force and is hereby dismissed, leaving the parties to bear their own costs. Q.M.H./M.A.K./S‑72/L Revision dismissed.