P L D 1984 Supreme Court 12 (PLP)

M. S. H. QURAISHI, J. The dispute in this appeal concerns a portion of House No. 370, Ward No. 8-H, Multan. The portion was transferred in favour of Ghulam Qadir, a non-claimant, appellant No. 1 (since deceased) and a P. T. O. was issued in his favour on 10-12-1959. He was asked to pay. the evaluated price of Rs. 4,416 at which he represented that the same was on the high side considering the dilapidated condition of the property and requested for re-assessing the value. His P. T. O. was, however, later, cancelled on 2-2-' 961 without observing the requisite formality and although he submitted another application on 6-6-1968 against the evaluation, the property was, with the approval of the Settlement Commissioner accorded on 22-6-1974, transferred in favour of Abbus Sattar, respondent No. 1, on 16-12-1974 at Rs. 2,

300. This was done notwithstanding the fact that Ghulam Qadir's revision already on 29-6-1974 was still pending. That revision was ultimately accepted by the learned Settlement Commissioner on 2-4-1975, whereby the transfer in his favour was restored and he was allowed one month's time to pay the evaluated price of Rs. 4,416 plus penal interest. He deposited the said price plus Rs. 177 as penal interest. By an association deed filed on 30-4-1975 he surrendered his entire right in the property in favour of Haji Muhammad Rafiq, appellant No.

2. On being told that he was to pay some more amount by way of penal interest, Ghulam Qadir asked for time which was allowed on 8-5-1975 and he made the deposit in time.

2. Abdus Sattar respondent, however, challenged the Settlement Commissioner's order's dated 2-4-1975 and 8-5-1975 by a writ petition which was accepted by the impugned judgment dated 5-11-1979 for the reason that Ghulam Qadir having declined to keep the house and the order of cancellation of his P. T. O. having been passed on 2-2-1961 with notice to him and within his knowledge, he was left with no locus standi to have questioned the transfer made in favour of Abdus Sattar.

3. This judgment was challenged both by Ghulam Qadir and Haji Muhammad Rafiq, although the latter had not been a party in the writ petition by filing civil petition for Leave to Appeal No. 241 of 1980. On 8-8-1983 when the petition came up for hearing, Syed Inayat Hussain Shah, A. O. R., appeared for the appellants, Mr. Shehzad Jebangir A. S. C. for the Department while Mr. Qurban Sadiq lkram A. S. C., appeared for Abdus Sattar respondent No.

1. As all the . parties were represented, the petition, after hearing, was converted into appeal and allowed, vide judgment of this Court of that date.

4. Abdus S attar respondent, however, made an application (Civil Miscellaneous Petition No. 559-R of 1983) on 25-8-1983, stating that he had not engaged any counsel, that the counsel appearing for him had no authority and that he himself had never received notice of the hearing. He, therefore, prayed for re-hearing of the case. He further stated in the petition that Ghulam Qadir (appellant No. 1) had already died on 19-2-1982 and that his legal representatives not having been brought on record, the prosecution of the case was against the law. 5. 1n the course of scrutiny, the office found that although Haji Muhammad Rafiq, appellant No. 2, had not been a party before the High Court yet he had joined as a petitioner in the civil petition without any order of the Court and that though no power-of-attorney had been filed on his behalf, yet Syed Inayat Hussain Shah, A. R. O., had appeared for him and argued his case. Notices were, therefore, issued to all the Advocates who had appeared during the haring of the civil petition on 8-8-1983, calling for their comments in regard to the complaint made by Abdus Sattar respondent.

6. Mr. Qurban Sadiq Ikram, A. S. C., who had appeared on behalf of Abdus Sattar, explained that he did not recollect whether he had been engaged as a counsel but having come to know that his name had appeared in the cause list he had checked up from Shah Abdul Karim, A. O. R., who had informed him that his power-of-attorney must be on the file, otherwise the office would not have shown his name in the cause list, and that it was on this basis that he had appeared as a caveator. On the receipt of the notice from this Court he had, however, checked up the file and found that the power-ofattorney in favour of Sh. Abdul Karim, A. O. R., attached with the case did not pertain to this case (C. P. S. L. A. No. 241 of 1980) but to another case Ghulam Qadir Khan etc. v. The Multan Central Co-operative Bank Ltd., Multan, the ,number of which case had been wrongly given as Civil Petition 241 of 1980 which had caused the confusion. His appearance, according to him, was, therefore, on account of a bona fide mistake and under a genuine plea that he was a counsel in the case and he had duly taken care to inform Abdus Sattar by post of the decision of the Court dated 8-8-1983. Sh. Abdul Karim, A. O. R., in his comments admitted that a wrong power-of-attorney had been filed due to inadvertence and that he did not represent Abdus Sattar at all and added that although he was marked present during the hearing but in fact he had not appeared on that date. in view of general exemption granted to him by this Court on the ground of health. He begged "to be excused for the inconvenience caused". He has been proceeded against for negligence:

7. Syed Inayat Hussain Shah, A. O. R. for the appellants stated in his comments that the death of Ghulam Qadir appellant had not within his knowledge on the date of hearing of the civil petition ; that Haji Muhammad Rafiq, in whose favour all rights in the property had been surrendered, as admitted by Abdus Sattar himself in his writ petition, was a necessary party ; that both the appellants had executed powers-of-attorney but the one executed by Haji Muhammad Rafiq could not be filed due to inadvertence. He furnished the power-of-attorney executed in his favour by Haji Muhammad Rafiq. In support, an affidavit of Haji Muhammad Rafiq was also attached. In the end, he tendered apology. Mr. Shehzad Jehangir who had appeared for the Department, stated in his comments that the truth or otherwise of the complaint made by Abdus Sattar was not in his knowledge and that nobody should be condemed unheard. 8. - On 4-10-1983 Syed Inayat Hussain Shah, A. O. R. for the. appellants filed an application for impleadment of the legal representatives of Ghulam Qadir deceased alongwith an application, for condonation of the delay in filing the application, as also a power-of-attorney on their behalf.

9. Notices were issued to all the parties on 9-10-1983 for today for hearing of Abdus Sattar's Civil Miscellaneous Petition No. 559-R of 1983. The whole case was, however, heard afresh., Abdus Sattar, respondent, who was present in person, himself argued his case.

10. Ghulam Qadir having died during the pendency of the civil petition, the mere non-impleadment of his legal representatives, . in the[A absence of any provision in the Supreme Court Rules for automatic abatement of the petition, was of no consequence. See Khushi Muhammad v.? Aziz Bibi (1980 S C M R 531). Even under Order XXII, rule 3(2)., C. P. C., where no application is made for impleading the legal representatives, the Court can proceed with the suit and any order made or judgment 'pronounced shall, notwithstanding the death, have the same force and effect as if it had been made or pronounced before the death took place. In any case, the legal representatives have now been brought on record and are duly represented by Advocate.

11. In regard to the objection to Haji Muhammad Rafiq having joinedi as petitioner No. 2 although he had not been a party before the High Court; it appears that all rights in the disputed property had been surrendered in his favour by Ghulam Qadir. This fact had been stated by Abdus Sattar respondent btmself in para. 15 of his writ petition. That being so, Haji Muhammad Rafiq was a necessary party and ought to have been impleaded in the writ petition. He being aggrieved by the order of the High Court could agitate against it before this Court. Abdus Sattar explained that he had not impleaded Haji Muhammad Rafiq in the writ petition firstly because be had not been a party before the Settlement Commissioner and secondly because he had been pursuing the matter in the High Court. In this connection he added that in an ejectment proceeding instituted by him, Haji Muhammad Rafiq-s plea for imleadment had failed throughout up to Infra-Court Appeal. These submissions, however, will not detract from the right of Haj: Muhammad Rafiq, in the present proceeding, to challenge the order of the High Court whereby he had been adversely affected, Abdus Sattar, however, questioned the validity of the surrender but since no such plea had been taken by him before the High Court, he cannot be permitted to raise this plea of fact now.

12. The objection on account of the failure to file power-of-attorney on behalf of Haji Muhammad Rafiq is also of no substance. Syed Inayat Hussain Shah has explained that the power-of-attorney had been duly executed but could not be filed due to inadvertence. The failure to file the power-of-attorney is, in the circumstances, no more than an irregularity which stood cured by the subsequent filing of the document. This Court had in Toor Gul v. Mumtaz Begum (P L D 1972 S-C 9) held that accidental omission of name of pleader from the body of the vakalatnama was a mere irregularity and that the vakalatnama could not be said to be not valid on that account. In Eastern Bank v. A. Karim & Co. Karachi (P L D 1979 Kar. 632) where the plaint had been signed by the Advocate but the power-of-attorney had not been filed, the same having been misplaced, the objection as to lack of power of the Advocate was held to be without substance. The same Court in Nabi Bakhsh & Sons v. Pakistan (P L D 1969 Kar. 21Q) held that where an application is signed and presented by a pleader to whom authority has not been given in the manner prescribed under rule 4 of Order III, C. P. C., it was a mere irregularity which could be cured at a subsequent stage. In the instant case, the civil petition had been duly signed by Syed Inayat Hussain Shah, A. O. R., and he has now filed the power ofattorney executed in his favour by Haji Muhammad Rafiq. The irregularity' it' any, stood thereby cured.

13. On merits, Abdus Sattar submitted that Ghulam Qadir had himself expressed his unwillingness to take the property at the evaluated price and that though the property had been resumed in 1961 and had been put to auction many a time, yet Ghulam Qadir had not agitated until 1975. He further submitted that Ghulam Qadir had not deposited the entire amount including the penal interest within time allowed by the Settlement Commissioner's order dated 2-4-1975. He also informed this Court that he had, in the result of the ejectment proceeding, already taken possession of the property from the widow of Ghulam Qadir on 21-4-1982.

14. There is nothing to show that cancellation of the P. T. O. and the' resumption of the property from the name of Ghulam Qadir had been done after observing the required, formality and with notice to him. The order of the Deputy Settlement Commissioner, dated 2-2-1961, which had been passed on a departmental report, reads "Since the occupants have not submitted any R: C. C. so far, the property cannot be transferred in their names. Therefore, the P. T. O. and app. may b.- cancelled and the property be included in auction list." Moreover, as he had already filed a revision on 29-6-1974, the property ought not to have been transferred to Abdus Sattar during the pendency of that petition and in any case its transfer was subject to a decision of the revision. There is also no proper basis to accept that Ghulam Qadir had declined to take the property. He had in reality been agitating against the evaluation. In this he'was not alone because Jamil Ahmad, the son of the transferee of the other portion of the same house was also similarly agitating and although he too had not paid the price, yet in his case the P. T. O. issued had not been cancelled and he had been allowed to pay the price by the same order of the Settlement Commissioner, dated 2-4-1975 -Ghulam Qadir's plea in his application, dated 6-6-1968 as noted in that order had been that he was not capable of paying the high price. His statement made in that application that at that , high price he would have no objection if the property was given away as hujra to the adjoining mosque, had been erroneously interpreted by the High Court to mean an outright refusal on his part to take the property. Mr. Shehzad Jehangir, who had been given time during . the hearing on 8-8-1983 to check up from the departmental file, took the stand that the perusal of the departmental file did not indicate that Ghulam Qadir had, in writing, declined to retain the property. The High Court was, therefore, not justified in holding that Ghulam Qadir had "declined to accept the transfer of the house in dispute".

15. Ghulam Qadir had deposited within time the evaluated price plus penal interest of Rs. 177 as had been asked for. As he was later asked to make further deposit by way of penal interest, he approached the Settlement Commissioner for time and made the deposit within the extended time. For this he was not to blame because as observed by the learned Settlement Commissioner in his order dated 8-5-1975, the clerk of his office had himself not correctly worked out the penalty in time.

16. And lastly, the conclusion of the ejectment proceeding brought by Abdus Sattar on the strength of the impugned order of the High Court will have no bearing on the outcome of this appeal.

17. In the result, the impugned judgment of the High Court is not found sustainable and is accordingly set aside. There shall be no order as to costs. M. z. nt.? Appeal accepted.