1983 PLP 2613 (CLC)

2. In spite of the statement filed in suit No. 215/65 and the passing of the above order, the plaintiff was served with the notice dated 22nd Septem ber, 1971 by the defendant No. 3 Respondent No. 4 informing him that the Commissioner, Hyderabad, had transferred his quarter No. 2/A in the name of APWA and that he, however, would be compensated by an allotment of a plot or quarter whichever is available "in lieu".

3. This resulted in filing of the suit (F. C. Suit No. 273/71) by the plaintiff (Respondent No. 1) against the respondents Nos. 2 to 4 wherein the following reliefs were claimed :- . (a) Declare that the order No. DHO/SAC/2831/71, dated 22nd September, 1971 issued by defendant No. 3 is illegal, void and with out jurisdiction and this has no force in the eye of law, and that the plaintiff is lawful allottee of quarter No. S/A. Unit No. 6, Latifabad, Hyderabad and the allotment in question is not liable to cancellation except in terms of the allotment. (b) Grant permanent injunction restraining the defendants personally or through their agents, servants or subordinates, in any manner whatsoever directly or indirectly from implementing the order No. DHO/$AC/2831/71, dated 22nd September, 1971 or in any manner interfering in the rights of the plaintiff except in due course of law. (c) To grant cost of the suit to the plaintiff."

4. The defendants did not contest the suit and the plaintiff filed his affidavit in ex parte proof. The learned trial Court however examined one Mr. lftikhar Ahmed a clerk in the office of the Respondent No. 4 as a Court witness. This witness in his evidence, in answer to the Court ques tion produced certificate of payments made by the plaintiff as Exh.

19. He also produced the original entry in the Allotment Register, which was seen and returned, but a copy thereof was kept on record as Exh.

20. It was admitted by said witness that the Secretary, Administrative Committee Shah Latifabad had not given any show-cause notice at the time of cancel lation of the allotment to the plaintiff and that the plaintiff had not violated any of the terms and conditions of the allotment order.

5. The learned trial Court having come to the conclusion on evidence record that the plaintiff had acquired a right in the suit property after the same was allotted to him and for which he has paid full installments and that the allotment order did not provide for the unilateral cancellation of the quarter as was done in the present case, by judgment passed on 15th April; 1974, decreed the plaintiffs suit as prayed.

6. Thereafter on 26th May, 1975, Secretary of the Administrative Committee, Shah Latifabad, Hyderabad informed the applicants that on the direction of the Government of Sind given on 26th April, 1975 for im plementing the order passed by the learned Civil Judge in Suit No. 273 of 1971, the subsequent allotment order No. 2 dated 22nd September, 1971, made in favour of Secretary, APWA Branch, Hyderabad for Quarter No. 2/A-VI, Latifabad, was thereby withdrawn.

7. The applicant instead of taking any proceedings against the order of cancellation of their allotment, filed Civil Appeal No. 120 of 1975 in the Court of District Judge, Hyderabad on 18th June, 1975 against the Judgment and decree passed by the learned Civil Judge in F. C. Suit No. 273 of 1971 on 15th April, 1974. Copies of the Judgment and decree were applied for on 17th June, 1975 and the same were delivered to the appellant on the same date. The appeal was presented on 18th June, 1975, beyond the period (30 days) prescribed under the Limitation Act. An application under section 5 of the Limitation Act was also filed but no order seems to have been passed on the same.

8. The explanation given in the affidavit filed in support of the appli cation moved under section 5 of Limitation Act was that the appellants who were not parties to the suit, for the first time came to know of the passing of the decree on receipt of the letter dated 26th May, 1975 from the respondent No.

2. The learned counsel for the applicants conceded that the appeal filed by the applicants before the first appellate Court was barred by time but he contended that they were not parties to the suit and as such the delay in filing the appeal was liable to be condoned under section 5 of the Limitation Act. It would however be observed that though the applicants alleged to have come to know of the passing of the decree on 26th May, 1975, they for the first time applied for grant of certified copies of the judgment and decree of the trial Court on 17th June, 1975. Though the Civil Courts were closed from 1st June, 1975 on account of summer vacation there was however no justifi cation for not to. have applied for the copies forthwith and to file the appeal without Joss of a single day. It has been time and again laid down by the superior Courts of this country that valuable rights having accured to a party, the said rights cannot be allowed to be taken A away unless valid grounds are made out and delay of each day is satisfactorily explained. (1976 S C M R 102). In the present case in the affidavit filed in support of application made under section 5 of Limitation Act it is admitted that the appeal was being filed after acquiring knowledge of the judgment and decree on receipt of letter of 26th May, 1976 but there is not a single word show ing any cause muchless sufficient cause for not filing the appeal forthwith. The appeal filed before the learned -First Appellate Court was thus liable to be dismissed on this ground alone.

9. There is another factor, which need be noted here. From the perusal of the record, we find that the allotment in favour of the applicants was cancelled, as far back as 26th May, 1975, of which intimation was given to them but no proceedings of whatsoever nature for challenging the said order were ever taken. The fact therefore emerges is that the applicants ceased to have any rights, title or interest in the quarter/property in question when they filed the appeal on 18th June, 1975 before the learned lower appellate Court. Mr. Jhamat the learned counsel however referred to the case of S. H. M. Saya v. Nazir Ali (P L D 1965 Kar. 603.) and submitted that the applicants though not party to the suit had a right of appeal against the judgment and decree passed by the trial Court. It may be noted here that against the above-cited judgment the appeal preferred before the Honourable Supreme Court was dismissed (P L D 1969 S C 65) and it was held therein that if the decree or order appealed from adversely affects a person he should be per mitted to challenge the same in appeal even if be was not made a party to the original suit or proceedings. The principle laid down in the above case however did. not justify the filing of the appeal by the applicants as much before the presentation of the appeal their allotment already stood cancelled. The petition is that till -today, even after the lapse of more than six years, the said order of cancellation of allotment has remained unchallenged. The defendants (who are respondents Nos. 2 to 4 in this petition) also did not file any appeal. They instead, by a separate order, cancelled the allotment of the applicants. In the circumstances the applicants had no locus standi to file any appeal against the judgment and decree passed in favour of the respondent No. 1 against the res pondents Nos. 2 to 4.

10. The learned trial Court on the evidence on record came to the conclusion that the plaintiff/respondent No. 1 acquired 'a right in the suit property after the same was allotted to him, for which he paid installments and that the terms and conditions of the allotment did not provide for unilateral cancellation of the plaintiff's allotment. The first appellate Court,, while dismissing the appeal filed by the applicants, held that the further allotment of the property in the question in spite of the subsisting allotment of the plaintiff/Respondent No. 1 and without first legally canceling the plaintiff's allotment amounted to double allotment, which was not permissible. It was further held that when the allotment was made in favour of the applicants, the quarter in question was not at all available for allotment to them. The learned lower appellate Court also took notice of the fact that in the earlier suit (suit No. 215 of 1975) filed' by the plaintiff/respondent No. 1, statement was made on 6th March, 1970 on behalf of the concern ed authorities wherein while admitting, that the quarter in question has been allotted to 'the plaintiff, it was stated that show-cause notice had been given to APWA to vacate the said quarter and deliver its possession to the plaintiff. The learned First Appellate Court fur ther held ;- - "Moreover even the aforesaid subsequent/double allotment in favour of the appellant it appears that keeping in view the principles of natural justice, has been withdrawn on 26th May, 1975 by the respondent No.

2. The appellant has as is evident, from the record, not at all challenged the said order recording the withdrawal of his allotment, before any competent authority as such the same has become final. Thus this appeal has been filed by a person who had no locus standi on 18th June, 1975, the date of the filing of this appeal for preferring the same to challenge the impugned judgment and decree passed by the Court below."

11. The earned counsel for the applicants has not been able to point out any impropriety, illegality or want of jurisdiction in the judgment passed by the learned Courts below. The allotment in favour of plaintiff/respon dent No. 1 was made on 3rd. January, 1967. He has already made full payment. There is no valid reason to justify any interference by this Court in the exercise of its power under section 115, C. P. C.

12. Accordingly this petition is dismissed. There shall however be no order as to costs. M.Y.M. Petition dismissed.