1975SCMR279 (PLP)

Mian Fazil Mahmood, Advocate Supreme Court instructed by Maqbool Ahmad, Advocate‑on‑Record for Appellant. Nemo for Respondents. Date of hearing : 15th January 1975. MUHAMMAD YAQUB ALI. J.‑The dispute relates to transfer of Pahuja Building, 10‑Frere Road, Karachi, which consists of a number of residential units. Flat No. G/2 is in occupation of Hakim Muhammad Ishaque, respondent No.

3. Flat No. 1/2 is in occupation of Nasiruddin, the son of Mst. Jahan Ara Begum, appellant herein. Flat No. 2/2 is in occupation of Mst. Ejaz Begum, respondent No. 4 and Flat No. 1/1 Is in occupation of Irshad Hussain, respondent No.

5. All of them applied separately for transfer of the portions in their possession. Respondent No. 3 was not in possession,7but applied for transfer on the basis of the possession of her son Nasiruddin. On 29th October 1959, the Deputy Settlement Commissioner held the entire building as a single indivisible house and transferred it to respondent No.

3. The order was on 11‑8‑1960 set aside by the Settlement Commis sioner who held the building to be divisible into 7 flats and ordered that flat G/2 be transferred to Hakim Muhamman Ishaq‑ue, respondent No. 3 1 flat No. 1/2 be transferred to the appellant ; and flat No. 2/2 be transferred to Mst. Ejaz Begum. Flat No. 111 already stood transferred to S. Irshad Hussain, respondent No. 5 in separate proceedings. Further revision petition filed by the appellant against this order was dismissed by the Chief Settlement Commissioner on 8th January 1961. The appellant disputed the legality of the said order and filed Writ Petition No. 140 of 1961 in the erstwhile High Court of West Pakistan, Karachi Bench. The petition was allowed by a learned Single Judge primarily on the ground that the finding of the Deputy Settlement Commissioner as delegatee of the Chief Settlement Commissioner that the building was indivisible was not open to interference by the higher Settle ment authorities in appeal or revision. He also found certain faults in the C. H. Forms filed by the respondents and condonation of delay in the sub mission of C. H. Form by respondent No. 5. 1t was further considered objectionable on the part of the Additional Settlement Commissioner to transfer fiat No. 1/1 to respondent No. 5 without notice to the appellant. On the above findings the learned Single Judge set aside the orders of Chief Settlement Commissioner and the Settlement Commissioner end thereby upheld the transfer of the entire building in favour of the appel lant. On a further appeal by the respondents, a Division Bench of the High Court came to the contrary conclusions and set aside the order of the learned Single Judge. The present appeal is preferred by Mst. Jehan Ara Begum against the order of the Division Bench of the High Court. On hearing the learned counsel for the appellant and perusing the various orders passed by the Settlement authorities and the learned Judges in the High Court, we find no merit in the appellant's claim to the transfer of the entire building in her favour as a single residential unit. Ors the contrary, each flat in the building being a separate residential unit, within the purview of section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, transfer of all the 7 flats in favour of the appel lant was not only illegal, but palpably perverse. The principal ground on which the learned Single Judge had set aside the orders passed by the Settlement Commissioner and the Chief Settlement Commissioner viz. that the decision by the Deputy Settlement Commissioner that the entire building was a single residential unit was final and not open to further appeal or revision was per se untenable. In arriving at this con clusion the Deputy Settlement Commissioner had acted in exercise of his normal functions and not as a delegatee of the Chief Settlement Commis. sioner. It was so held by this Court in Fateh Muhammad v. Moula Bux and others (P L D 1963 S C 311). Subsequently the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was amended and it was clarified that the orders passed by the subordinate Settlement authorities as delegatees of the Chief Settlement Commissioner were always open to appeals and revisions under section 20 of the Act. The other grounds on which the learned Single Judge had relied were of minimal importance and the learned counsel for the appellant did riot lay much stress on them. He, however, relied strenuously on the delay in the institution of the Letters Patent Appeal in the High Court by respondent No.

3. It was urged that as in the judgment disposing of the appeal, the learned Judges have not specifically adverted to the question whether it was a fit case for condonation of delay, it shall be presumed that their Lordships had not applied their mind to this material aspect of the case. There is little force in the contention raised by the learned counsel. The memorandum of appeal was accompanied by an application under section 5 of the Limitation Act and an affidavit arming the statements contained therein. The main ground urged in support of the prayer for condonation of delay was that before the disposal of the writ petition by the learned Single Judge there was a change in the law relating to appeals. The provision for preferring Letters Patent Appeals in the High Court was repealed by the Appellate jurisdiction (High Courts and Supreme Court) Ordinance L of 1962. Thereafter an appeal from the order, judgment and decree passed by a Single Judge could be preferred to this Court only by obtaining special leave to appeal under Article 58 of the 1962 Constitution. The respondent No. 3 was so advised by his counsel Mr. M. A. Rahim. He applied for certified copy of the judgment of the learned Single Judge on 28‑3‑1963 which was delivered to him on 3‑4‑1963. As the limitation for filing petition for special leave to appeal in this Court was sixty days, he took time to make arrangements for fun's required for filing the petition. He again contacted Mr. Rahim on 2nd May 1963, who informed him that in the meantime the law has been further amended and the provision for institution of Letters Patent Appeals in the High Court have been restored by the Appellate Jurisdiction (High Courts and Supreme Court) (Repeal) Act IV of 1963. This was the cause of the delay in the institution of the Letters Patent Appeal. The learned Judges of the High Court considered this explanation adequate and on 16‑5‑1963 condoned the delay subject to an objection by the appellant herein. Assuming that an objection was raised by the appel lant's counsel before the Division Bench, the learned Judges obviously did not accept the contention otherwise they would not have . proceeded to deliver a lengthy judgment on merits. In our own view, the explanation given by respondent No. 3 did con stitute a sufficient cause for condonation of delay. This is not the only case in which litigants were misled by the quick changes made in the law relating p to appeals. In score of cases petitions for special leave to appeal were filed in this Court after the jurisdiction of the High Court to entertain Letters Patent Appeals had been restored by Act 1V of 1963. We, accordingly, see no merit in any of the contentions raised by the learned counsel for the appellant and dismiss the appeal, but with no order r as to costs. Appeal dismissed.