1986 PLP 154 (CLC)

TANZIL‑UR‑REHMAN, J.‑‑This High Court appeal is directed against the judgment dated 3‑2‑1979 passed by a learned Single Judge of this Court in Constitutional Petition No. 227 of 1974, which was filed by the present appellant for challenging the orders dated 7‑12‑1973 and 21‑2‑1974 passed by the Additional Settlement Commissioner (Land), Larkana, and the Settlement Commissioner (Land), Larkana respectively.

2. The brief facts leading to the above appeal are that agricultural Land in dispute was transferred in favour of the petitioner by Deputy Settlement Commissioner, Larkana, by his order dated 23‑10‑1954. On 18‑7‑1964 the respondent No.3 filed an application before respondent No.l challenging the transfer of the said land to the petitioner, on the ground that the said land had already been purchased by her late husband from a Hindu owner Safarmal by a sale‑deed registered on 24th August, 1948. Respondent No.1 remanded the said application to respondent No.2 for enquiry. After holding enquiry, it was held by him that the respondent No.3 had failed to prove the sale in favour of her husband as valid and that, in any case, there was no confirmation of the said sale by the Custodian in favour of her late husband. Her application challenging the transfer of land in favour of the petitioner was, 'therefore, rejected. She then filed a revision before respondent No.l, who by his order dated 21‑2‑1967 held that the said sale‑deed was duly confirmed and that the disputed land could not be allotted to the petitioner. The petitioner, thereafter filed a Writ Petition No. 173 of 1967 in the then High Court of West Pakistan, Karachi Bench, Karachi. A learned Judge of this Court by his judgment dated 7‑4‑1973 allowed the petition setting aside the order dated 21‑2‑1967 passed by respondent No.l and restoring the order dated 28‑4‑1966 of respondent No.2, but observed as follows:‑ "Finally I have to point out that I was requested to send for the Custodian's record in order to verify the correctness of the copy of the Deputy Custodian's order of 31‑7‑1951 on which the 2nd respondent's (sic) bases her case. Mr. Abbas Zia stated in this connection that the record, which was missing at the relevant time was now available. If this statement is correct, the 2nd respondent should have produced a certified copy of the order 31‑7‑1951. She had not, however, as I am setting aside the first respondent's order, and restoring the Additional Settlement Commissioner's order it would be open to the 2nd respondent to apply for appropriate relief to the Additional Settlement Commissioner on the ground that the Custodian's files have now been traced, the more so as the loss of these files was not her fault. "

3. Thereafter, respondents Nos. 3 and 4 who are the widow and daughter of late Seth Abdul Ghani filed an appeal before the respondent No.2 under section 18 of the Displaced Persons (Land Settlement) Act 1958 on 24‑9‑1973 which was entertained as revision application by him who allowed the same by his order dated 7‑12‑1973, whereby it was held that the sale of the land in question made by Safarmal to Seth Abdul Ghani was duly confirmed by Mr. S.B. Bakhsha, the then Deputy Custodian, evacuee property on 31‑7‑1951. The allotment of land made in favour of petitioner was, therefore, cancelled. Being aggrieved with the said order the petitioner filed a Revision Petition before respondent No.1 who by his order dated 21‑2‑1974 dismissed the same, as the second revision petition was not competent. The petitioner then chose to file a Constitutional Petition No. 227 of 1974 in this Court which was dismissed by a learned Single Judge of this Court by his order dated 3‑2‑1979, which has been impugned in this High Court Appeal.

4. Mr. S. Abbas Zia, the learned counsel for the respondents Nos.3 and 4 took a preliminary objection that as there was provided a right of appeal against the said original order of allotment dated 4‑3‑1963 under the Displaced Persons (Land Settlement) Act XLVII of 1958 and as the learned Single Judge has passed the judgment impugned in this High Court Appeal, in exercise of. his constitutional jurisdiction under Article 199 of the Constitution of Pakistan, 1973, the above High Court Appeal is not competent in view of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 (hereinafter referred to as the Ordinance). In reply, Mr. Nizam Ahmad, learned counsel for the appellant contended that since there was no right of appeal, revision or review against the order dated 7‑12‑1973 of the Additional Settlement Commissioner (respondent No.2), the above appeal lies to this Court.

5. Mr. Nizam Ahmed, learned counsel for the appellant took us to the relevant provision of section 3 of the Law Reforms Ordinance XXII of 1972, Ordinance XXIV of 1972 and Act VIII of 1972 and Act VI of 1975. It would be convenient to reproduce the relevant provision of section 3 of Land Reforms Ordinance XII of 1972 which reads as follows: "

3. Certain appeals barred.‑‑As from the commencement of this Ordinance:‑ (a) no appeal under the provision of any Letters Patent, as applicable to a High Court, shall be entertained by such High Court, and (b) no second appeal shall lie in any suit of the nature referred to in section 102 of the Code of Civil Procedure, 1908 (V of 1908), as amended by this Ordinance: Provided that nothing contained in this Ordinance shall be construed as affecting any such appeal which was pending immediately before the commencement of this Ordinance."

6. The above Ordinance was amended by Land Reforms (Amendment) Ordinance XXXIV of 1972, whereby section 3 was amended which reads as under:‑ "Appeal to High Court in certain cases‑‑(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that High Court in the exercise of its original civil jurisdiction : Provided that no such appeal shall lie from an order which does not dispose of the whole matter before the Court. (2) No appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that High Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan in a matter arising under any law relating to the Rehabilitation and Settlement of Displaced Persons or from an order so made under sub‑paragraph (i) of paragraph (b) of that clause. (3) Nothing contained in this Ordinance shall be construed as affecting‑‑ (a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908) , which was pending immediately before the commencement of this Ordinance, or (b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."

7. Section 3 was again amended by Land Reforms (Amendment) Act VIII of 1972 which reads as under:‑ "

3. Appeal to High Court in certain cases.‑‑ (1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that High Court in the exercise of its original civil "jurisdiction. (2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub‑paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, Tribunal or authority against the original order. (3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court. (4) Nothing contained in this Ordinance shall be construed as affecting‑‑ (a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance; or (b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."

8. Section 3 of the above Act was again amended by Land Reforms (amendment) Act VI of 1975, whereby the words "Article 201 of the Interim Constitution of Islamic Republic of Pakistan" were substituted by Article 199 of the Constitution of Islamic Republic of Pakistan and after words "One appeal", the words "or one revision or one review" were inserted:

9. It is to be noticed that in subsection (2) of section 3 quoted above, the right of an appeal was provided to a Bench of two or more Judges against the order passed by a Single Judge of a High Court under Article 201 of Interim Constitution of Pakistan (corresponding to Article 199 of the Constitution of Pakistan, 1973), in the cases where the petition filed under Article 201 of the Interim Constitution of Pakistan of Article 199 of the Constitution of Pakistan 1973 arises out of any proceeding in which the law applicable does not provide for appeal, revision, or review to any Court, Tribunal or authority against the original order passed in any proceedings under that law. In other words, no appeal to the High Court lies against the judgment passed by a Single Judge of High Court under its Constitutional jurisdiction conferred by Article 199 of the Constitution of Pakistan 1973, if a right of appeal, revision or review to any Court, Tribunal or authority against the original order arising out of any proceedings in which the law applicable was provided.

10. The main point for consideration in this case is whether the expression "Original Order" occurring in proviso 3(2) of the Law Reforms (Amendment) Ordinance XXXIV of 1972 and Law Reforms (Amendment) Act VIII of 1972 as amended should mean the order dated 4‑3‑1963 allotting the land to the petitioner or the order dated 7‑12‑1973 passed by respondent No. 2 cancelling the allotment. Mr. Abbas Zia contends that it is the order dated 4‑3‑1963 which is the original order as contemplated by the Law Reforms Ordinance whereas according to Mr. Nizam Ahmed it is the order dated 7‑12‑1973 passed by the Additional Settlement Commissioner, respondent No.2, cancelling the allotment already made in his favour.

11. Mr. Abbas Zia, in support of his contention that the above appeal is not competent, relied on an unreported judgment of a Division Bench of this Court in High Court Appeal No. 52 of 1979 in the case of M.A. Waheed v. Settlement Commissioner, Sind Karachi, and two Supreme Court decisions reported as Muhammad Abdullah v. Deputy Settlement Commissioner, Centre I, Lahore P L D 1985 S C 107 and Mst. Karim Bibi and others v. Hussain Bakhsh and another P L D 11984 S C 344 and also one case of the Lahore High Court reported as Yousuf All Khan v. Muhammad Javed Iqbal Cheema esq: Additional District Judge P L D 1975 Lah. 1339.

12. First to refer the latest decision of the Supreme Court P L D 1985 S C 107 the expression "Original Order" occurring in the proviso to section 3 (2) of the Law Reforms Ordinance, 1971, was held to mean an order with which proceedings under the relevant statute commenced. Since relevant law provided for an appeal against the original order, it was held by the Supreme Court that Intra‑Court Appeal was not competent.

13. In the earlier decision of the Supreme Court reported as Mst. Karim Bibi and others v. Hussain Bakhsh and another P L D 1984 S C 344 the words proceedings and original order occurring in the Ordinance came under scrutiny. The relevant observation reads as under:‑ "The original order in this case was obviously the one passed by the Deputy Settlement Commissioner in favour of Sher Muhammad predecessor‑in‑interest of appellant on 25‑7‑1960. The portion of the property in dispute consisting of the two shops was subsequently transferred to the first respondent by the Deputy Settlement Commissioner on 24‑8‑1963, which order was set aside by Additional Settlement Commissioner vide his order, dated 24‑11‑1973 in suo motu revisional jurisdiction, which order was impugned in the Constitutional Petition filed by the said respondent. Therefore, at the time the original order dated 25‑7‑1960 in favour of the predecessor‑in‑interest of the appellant was passed by the Deputy Settlement Commissioner as well as at the time the subsequent order dated 24‑8‑1963 was passed by him, the law as it stood provided for an appeal. The Constitutional Petition arose out of the proceedings with regard to the transfer of the property in dispute in favour of the predecessor‑in‑interest of the appellants, inasmuch as the final order passed by the Additional Settlement Commissioner restoring the transfer in his favour was challenged in the Constitutional Petition and the original order was subject to appeal when it was passed. This is sufficient to satisfy the requirements of the proviso which is thereby attracted to the present case. There is, therefore, in our opinion, no basis for considering the subsequent changes made in the law whereby the right of appeal was taken away long after the expiry of the period of limitation for filing of appeal against that order and considering the changed position of law with reference to the date of the institution of the Constitutional Petition. We cannot read anything in the language of the proviso to construe it' in such a manner. The obvious intention underlying the proviso was to abolish Intra‑Court Appeal in cases in which the impugned order in the Constitutional Orders arises out of the proceedings in which the original order was appealable. Necessarily, therefore, the question whether the original order was appealable or not will be determinable with reference to the law that was applicable on the date of such original order and not the date when the matter came before the High Court in Constitutional jurisdiction. Similarly we are unable to see any force in the contention that the word "proceedings" should be given restricted meaning so as to confine it to the proceedings before the authority which passed the order under challenge in the Constitutional Petition .." 14.‑ In the Karachi case, referred to above it was also held by a Division Bench that the original order was the order dated 23‑10‑1969 passed by the Deputy Settlement Commissioner transferring the bungalow in favour of respondents Nos. 2 to 8 and not the order dated 22‑11‑1969 against which the Constitutional Petition No. 201 of 1976 was filed and dismissed by a judgment of a learned Single Judge under the appeal, nor the order dated 28‑8‑1962 cancelling the transfer in favour of respondents Nos. 2 to 8 and transferring the same in favour of the appellant can be said to be the original order. The factum that the appellant could not have filed appeal, revision or review against the above original order would not make any difference for the purpose of constructing the provisions to subsection (2) of section 3 of the Ordinance. The learned Judge, for the above view, placed their reliance on a case reported as Bata Shoe Company v. The Registrar of Trade Union and others 1982 C L C 1884. In the said case the question at issue was, whether the High Court appeal was incompetent against the judgment passed by a learned Single Judge of this Court exercising Constitutional jurisdiction under Article 199 of the constitution arising out of an order passed under section 8 of the Industrial Relations Ordinance, 1969. The Division Bench of this Court to which Mr. Justice Ajmal Mian, who wrote the judgment in the said case as well as the above‑cited unreported case observed as follows:‑ "(b) The above‑cited cases clearly lay down that no appeal is competent against an order of Single Judge before a D.B. if the order impugned before the Single Judge was an order passed in proceeding in which the law provides the right of appeal. However, Mr. Mansoor Ahmed Khan, learned counsel for the appellant attempted to distinguish the above cases on the ground that admittedly no right of appeal was provided to the appellant under the I.R.O. and, therefore, the learned Labour Court's order was original order for the appellant. We may again observe that this is not relevant. The competency of an appeal is to be judged on the basis, as to whether the law under which the impugned order was passed, and which was impugned before the learned Single Judge provided one appeal or one revision or one review. If the answer of the above question is in the affirmative, no Intra‑Court appeal will be competent."

15. The Lahore case P L D 1975 Lah. 1339 is also on the same point and lends support to the contention of Mr. S. Abbas Zia.

16. The case‑law cited at the Bar leads us to an irresistible conclusion that in the present case the original order as contemplated by the proviso to section 3(2) of the Law Reforms Ordinance, 1972, is the Order dated 4‑3‑1963 by which the proceedings commenced in conferring the right by making allotment in favour of the petitioner and not the order dated 7‑12‑1973 of respondent No.2 cancelling the said allotment.

17. Mr. Nizam Ahmed in his attempt to distinguish the case referred to above, submitted that none of the cases were applicable to the facts of the present case as in all of them there was an order of remand whereas the observations appearing at the end of the judgment dated 7‑4‑1973 of the learned Single Judge of this Court, quoted above, could not be considered to be an order for remand. The contention is of little significance as respondent No.2 acted in pursuance of the observation contained in the judgment itself. The fact, however, remains that the proceedings started with the allotment of land to the petitioner on 5‑3‑1963 and culminated with the order dated 7‑12‑1973 of Additional Settlement Commissioner (respondent No. 2) or the Settlement Commissioner's order dated 15‑12‑1973. A perusal of the Displaced Persons (Land Settlement) Act, 1958 will barely show that the provisions for an appeal and revision were provided in the said statute against the original order passed in the proceedings under that law.

18. For the aforesaid reasons, the appeal is dismissed as not competent with no order as to costs. M.Y.H. Appeal dismissed.