2005 PLP 978 (CLC)

Yamin, the appellant of the instant Intra-Court Appeal is aggrieved from a judgment, dated 12-7-2004 passed by our learned brother Mr. Justice Muhammad Khalid Alvi in Writ Petition No.45/R of 1994 (Mst. Jajan v. Assistant Commissioner/Deputy Settlement Commissioner (Land)/Notified Officer, Mailsi, District Vehari).

2. The facts have been exhaustively dealt with by the learned Single Judge in Chambers in the impugned judgment, so those need not be reiterated and reproduced in this Intra-Court Appeal especially because of preliminary objection having been raised by the learned counsel for respondent No.1. The learned counsel for respondent No.1 has raised a preliminary objection with regard to the maintainability of this Intra-Court Appeal by stating that the original order, dated 3-5-1967 passed upon Mukhbari application filed under sections 10/11 of the Displaced Persons Land Settlement Act, 1958 was appealable, against which order appeal was also filed before the Settlement Commissioner, which was accepted on 14-3-1970. By that appellate order, the case was remanded, which afterward was concluded finally by the impugned order, dated 28-11-1994 passed by a Notified Officer. As the original order, dated 3-5-1967, was appealable against the allotment of Jalal, so the proceedings commenced from that order culminating through order, dated 28-11-1994, by the order of Notified Officer, cannot be assailed in Intra-Court Appeal. To support his contention, he has referred to Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Bassi v. Qasim Ali and others 1998 SCMR 13; Mst. Wazir Begum and others v. Member, Board of Revenue/Chief Settlement Commissioner and others 2000 SCMR

989. He has also cited Basai v. Qaim Ali and 8 others PLD 2003 SC 325.

3. On the other hand, learned counsel for the appellant has relied upon Province of Sindh through Chief Secretary, Sindh v. Gul Muhammad Hajano 2003 SCMR 325 by stating that the order dated 28-4-1994 passed by Notified Officer/A.C., Mailsi has to be treated as an original order, therefore, appeal should be held maintainable and competently filed.

5. After considering the arguments of both the learned counsel and from the perusal of the record, we have noted an important distinction which has to be kept in mind, while holding the Intra-Court Appeal to be maintainable or not. There are two kind of cases and situations. One is of the cases in which Mukhbari application was filed in such period when original order of allotment was not appealable. The other category of cases is of those cases where original order of allotment was subject to the incidence of appeal, revision/review. The order dated 3-5-1967 passed against Jalal, the original allottee was appealable and the appeal was actually filed against that allotment order and an order of cancellation dated 3-5-1967 was obtained, against which appeal was filed before the learned Settlement Commissioner (Land), Multan, which was accepted on 14-3-1970 and the case was remanded to Assistant Commissioner, Mailsi with the powers of D.S.C (Land). So, in the above noted proceedings, the appeal was provided by section 19 of the Land Settlement Act, 1958 against the original order which was also availed of. Therefore, the remedy of Intra-Court Appeal cannot be sought for. In fact, the wisdom for providing Intra-Court Appeal against an order passed in writ jurisdiction is for bringing another finding from a second Court so that no wrong/mistake/error/omission should remain in the field and the parties be given full opportunity of hearing and adjudication by at least two authorities/forums or Courts. As the appeal is the first remedy provided to a party, therefore, after the second remedy of writ, seeking a third finding/judgment through Intra-Court Appeal has been closed by the Legislature in its wisdom. Therefore, power of Intra-Court Appeal cannot be exercised in case where a remedy of appeal/revision/review/ representation was available against the original order. So, by holding this Intra-Court Appeal not maintainable, we dismiss the same, with no order as to costs. H.B.T./Y-9/L Intra-Court Appeal dismissed.