P L D 1966 (W (PLP)

2. The first point urged by the learned counsel for the peti tioners is that Mst. Nanki had a preferential right inasmuch as, she was a claimant and was allottee of the whole building (though this claim regarding allotment of the whole of the building has been contested by the other respondents). His second contention was that the appeal filed by respondents Nos. 1 and 2 before the Additional Settlement Commissioner was barred by time and the Additional Settlement Commissioner has acted without lawful authority in not giving effect to the point of limitation. In this connection, he relied upon Ata Ullah Malik v. The Custodian, Evacuee Property and five others (P L, D 1964 S C 260) and Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner and two others (P L D 1964 S C 236) The third point urged was that respondents Nos. 1 and 2 had no locus standi to file an appeal, because they had not filed any form. The fourth and the last point urged was that the division, as made by the D. S. C. in this case, as a delegate of the C. S. C., was final and the Appellate and Revisional Authorities could not sit in judgment over that decision of the D. S. C.

3. In my view none of the contentions, raised by the learned counsel for the petitioners, has any merits. It has been found by the learned Settlement Commissioner that, "Mst. Nanki claimed only a baithak in her CH form and that rightly stands transferred to her." From this it will be apparent that the form, which was filed by Mst. Nanki, was only for the baithak and not for any other portion of the property in dispute. From that point of view, since Mst. Nanki had not applied for any other portion of the property, she has no locus standi to challenge the transfer of those portions. She could not be given a portion for which she had not applied. This is clear on principle, but if any authority be needed on this point, reference can be made to a decision of the Supreme Court in Muhammad Hanif v. The Settlement and Rehabi litation Commissioner, Civil Petition for Special Leave to Appeal No. 5 of 1962, decided on the 6th of February 1963, where there Lordships of the Supreme Court held as follows:‑ "The order of the learned Judge of the High Court was justi fied on the ground on which it rested, but we are of the opinion that even otherwise the petitioner had no case. He had applied only for the transfer of a chaubara to him and that chaubara had in fact been transferred to him. He had no right to the transfer of the shop for which he had not applied at all. It is urged before us that the shop and the chaubara constitute one unit. Even if that be so, the petitioner would not be entitled to the transfer of the shop if he never applied for it. This petition is dismissed." Respectfully following the above dictum of their Lordships, I do not find that Mst. Nanki or her legal representatives have any locus stand to challenge the transfer of the rest of the portions of this property. In the present writ petition, which was later on amended also by the petitioners, there is no averment to the effect that the finding of the Settlement Commissioner that Mst. Nanki A had applied only for a baithak, is incorrect. In fact this finding has not been challenged. In this view of the matter, the writ petition of petitioners is liable to be dismissed on this short ground, and in any case, this is a complete answer to the first point raised by the learned counsel for the petitioners.

4. Adverting to the point of limitation, suffice it to say, that the petitioners did not raise the point of limitation before the Addi tional Settlement Commissioner and the fact that the Additional Settlement Commissioner proceeded to accept the appeal of respon dents Nos. l and 2, goes to show that he had condoned the delay in filing the appeal before him. It is apparent from the order of the D. S. C. that he had not dealt with the form of respondents Nos. 1 and 2, nor is there any indication that they were commu nicated the order regarding the disposal of this property, and, as such, when they took up the ground in ground No. 7 of their grounds of appeal before the Additional Settlement Commissioner, that they had no knowledge of the order of transfer, Mst. Nanki never controverted this allegation. Otherwise, there is no reason as to why the Additional Settlement Commissioner should not have dealt with the same. In these circumstances, since Mst. Nanki failed to take up this point before the Additional Settlement Com missioner, she cannot be allowed to agitate it, because the point B is one of fact, which, if pressed at the proper time, could have been proved by necessary evidence thereon. The order of the Additional Settlement Commissioner, therefore, shows that he condoned the delay and that Mst. Nanki abandoned it. I am fortified in the view, which I have taken, by a decision of the Supreme Court in Civil Petition for Special Leave to Appeal No. 353 of 1964 in Manzur Ahmad and others v. Abdul Hamid and others, where, in the similar circumstances, it was held as follows:‑‑ "A third point agitated before us was that the appeal dated 8‑3‑60 made by the respondents to the Additional Settlement Commissioner was itself lodged out of time and that the Addi tional Settlement Commissioner, while entertaining the appeal, had reserved the question of delay in filing the appeal, for decision at the time of disposal of the appeal, but said nothing on this point in his final order. The very fact, however, that he heard the appeal on the merits, implies that he had condoned the delay as he was competent to do. It does not appear that any objection on behalf of the petitioners was raised before him at the relevant time." Respectfully following the same principle, I hold that in the instant case as well, the learned Additional Settlement Commissioner condoned the delay and that Mst. Nanki did not press the point of limitation before him. No doubt, in the grounds of revision,' the point of limitation was again written, but it appears that at the time of the arguments at the Bar, this was again not pressed. In these circumstances, I do not find any force in this contention of the learned counsel for the petitioners. The authorities relied upon by the learned counsel for the petitioners have no relevancy to the facts and circumstances of the present case. In the case of Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan, Karachi and others, their Lordships were dealing with a case in which an application for confirmation of certain transaction was dismissed by the Deputy Custodian on the 19th of May 1955. About three years thereafter on the 7th of May 1958, another application seeking confirmation of the transaction was again put in. It was again dismissed by the Deputy Custodian but on appeal was granted by the Additional Custodian, who confirmed the sale. This order was maintained by the learned Custodian in revision. Before the Supreme Court, it was contended by Mr. Mahmood Ali, learned counsel for the then appellant, who was an allottee and who had been challenging the confirmation of the transactions, in point No. (iv) (a) at page 252 that the fresh application was time- barred and that neither the Deputy Custodian nor the Custodian bad extended the time. To that the reply of Mr. Brohi at pages 255‑256 was that from the order of the Custodian whereby he dismissed the revision of the allottee, it should be implied that he bad decided the question of limitation. This contention was not accepted and it was held:‑ "It is impossible to accept such a contention. The Custodian was not even conscious of the fact that the application for revival was incompetent and he certainly never applied his mind to the question whether time should be extended after treating it as a fresh application." Then after pointing out the difficulties in assuming the implied decision on the question of limitation, it was written by Kaikaus, J., at page 256:

"I have only pointed out the difficulties of the situation and the utter impossibility in the circumstances of imputing any implied decision to the Custodian on the question of sufficient cause." From this it would appear that it was not absolutely ruled in the above case that there can, in no circumstances, be assumed an implied condonation of delay or a decision on a question of limi tation. Each case, I would say, depends on its own facts and circumstances. Rather the passages quoted above from the Supreme Court's judgment show that implied decision there could be, but in view of the special features and circumstances of that case, such a decision was not so assumed there. One special feature of that case was that the Custodian there was not even aware of the maintainability of the application on its own merits and the point of limitation. In case, therefore, where the Court concerned is conscious of the point of limitation and from its order it can be found that it was alive to this point, there the position would be different. In the present case, the order of the Additional Settlement Commissioner shows that he was aware of the point of limitation and he pointedly mentioned it in the beginning of his order that the appeal was barred by time. Therefore, the present case is distinguishable from Ata Ullah Malik's case. In the present case, after mentioning the factum of appeal being belated, the Additional Settlement Commissioner proceeded to accept it and gave decision on merits. The present case falls within the scope of the law as laid down in Manzur Ahmad's case (Special Leave to Appeal No. 353 of 1964), and not Ata Ullah Malik's case. The second special feature of Ata Ullah Malik's case was that there defects and circumstances pleaded for sufficient cause were such which were not easy to decide. This is apparent from the follow ing passage occurring at page 256 of the report:‑ "In the present case, the question as to whether time should be extended if the application for revival was treated as a fresh application was not at all an easy one to decide. The first application which was dismissed on the ground of want of a clearance certificate was itself time‑barred and the Deputy Cus todian had to pass an order condoning delay. If a time‑barred application be dismissed for want of a certificate and a fresh application be filed, what is the principle on which the question of condonation of delay should be decided? It would be difficult to hold that the failure to obtain a clearance certificate is by itself sufficient cause. It is true that the liability to pay income tax is of the vendor, but the fact that the vendor does not pay is not by itself a ground for extension of limitation. The vendor was an evacuee who left the Country long ago. He is not interested in paying the income‑tax and if extension were granted on this ground a second application for confirmation could always be filed after getting a certificate. The vendee has to pay the income‑tax if he wants to get the sale‑deed confirmed and can his failure to pay be regarded as sufficient cause? I have no intention of answering this question so as to affect its decision by the Custodian. I have only pointed out the difficulties of the situation and the utter impossibility in the circumstances of imputing any implied decision to the Custodian on the question of sufficient cause." This passage shows that where circumstances are such, that there is no difficulty in accepting them as constituting a sufficient cause, there the presumption of implied condonation will be easy to be made. But where this is not the case, there an intention imputing an implied decision may be difficult to be raised. In the present case, the facts stated were quite simple, namely, that the D. S. C. had not dealt with the form of the respondent and that he was not conveyed any decision rejecting his form. The order of the D. S. C. and the record showed that both these averments were correct and, in these circumstances, an implied decision could be imputed to the Additional Settlement Commissioner that when he proceeded to accept the appeal, fie condoned the delay.

5. As regards tile case of Syed Azmat Ali v. The Chief Settle ment Commissioner acid others (P L D 1964 S C 260), there again tile facts were different. Firstly, in that case what happened was that the Addi tional Settlement Commissioner dismissed the appeal as time- barred, and the Settlement Commissioner without dealing with the findings of the Additional Settlement Commissioner, oil the point of limitation, proceeded to upset irk decision. It was held by their Lordships of the Supreme Court drat the order of tile Additional Settlement Commissioner could not have been upset, based as it was, solely on point of appeal before trim being barred by time, unless the finding on that point was properly met or upset. Secondly, that was a case where the Additional Settlement Com missioner had dismissed tire appeal as time‑barred, while the present is a case where the Additional Settlement Commissioner has proceeded to accept it. Thirdly, in that case, it was held that the Settlement Commissioner's order showed that he was not conscious of tile point of limitation, while in the present case, the order of the Additional Settlement Commissioner shows that he was conscious of it.

6. Last, but not the least, my further reason for not giving effect to tire point of limitation raised by the learned counsel for the petitioners is that under section 2001), Additional Settlement Commissioner possessed revisional jurisdiction also. By means o notification, dated tile 18th of January 1960, published at page 109 of the Settlement Manual (Old Edition), the Chief Settlement Commissioner has authorised all Additional Settlement Commis sioners, as mentioned therein, to exercise revisional jurisdiction within their respective jurisdiction. It is well‑settled that revisional jurisdiction, under tile Act, is discretionary and suo mote and is not dependent upon applications being made in that behalf. Reference may be made to Abdul Rahman Pasha v. The C. S. C. and another (P L D 1961 Lah. 12), and Mst. Amir Begum v. Umar Din and others (P L D 1961 Lah. 360). F Moreover, revisional jurisdiction can be exercised at any time and no time limit has been prescribed for that in the Act or in the Rules. The proceedings before the Additional Settlement Commissioner (even though initiated as appeal) could very well be turned into and considered as a revision, and from that point of view, tile point of limitation for the initiation of those proceed ings loses all significance. Probably, it may be for this reason that point of limitation does not seem to have been pressed by the petitioner before the Additional Settlement Commissioner, because had it been pressed, lie would have treated the appeal as a revision, and overcome the difficulty, if' any, in that way. Thus, consi dering the order of the Additional Settlement Commissioner, from an overall jurisdiction point of view, no defect call be found therein. Because, if not in appeal, his order can be justified in his revisional jurisdiction as well.

7. As regards tile next point that respondents Nos. 1 and 2 were not aggrieved persons and could not file an appeal, it has no force inasmuch as the Settlement Commissioner has found that a form was filed by these persons and since the D. S. C. failed to dispose of that form, they would be persons aggrieved and possessed the locus standi to file an appeal.

8. The last contention that when a delegate of the C. S. C. divided a property in a particular way then the Appellate and Revisional Authorities could not entertain appeals or revision against that has no force in view of the change to law as brought about by Ordinance 18 of 1965.

9. This petition has no merits and is hereby dismissed with costs. K. B. A. Petition dismissed.