1989 PLP 1683 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought through this petition against the dismissal of petitioners' first appeal, which had arisen out of a case under Waqf Ordinance.

2. A property was taken over by the Auqaf Deptt: through a notification on the assumption that it was waqf property. Challenge was made to this take over, according to the learned counsel, before various forums including the Evacuee Property Trust Board and Civil Courts. But, it was without any success, as every forum held that it had no jurisdiction in the matter. Ultimately, the High Court while dismissing an earlier R.S.A. of the petitioners' side in 1985 observed as follows:‑ "However during the course of arguments, learned counsel conceded that the proper remedy for the appellants was a petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 and not a suit before the civil Court. This concession was offered in terms of section 17 of the aforesaid Ordinance. Learned counsel in these circumstances, does not press the appeal and reserves his right to agitate the matter before the District Judge, Lucia in a petition under section 7 of the Ordinance stands disposed of as not pressed. However, the present appellants, if so advised, can take appropriate proceeding under the provisions of Ordinance XXVIII of 1901 which when initiated will be adjudicated upon its own merits and in accordance with law". Taking benefit of re‑produced underlined observation an application under section 7 of the Ordinance was filed before the District Judge, which was dismissed as time‑barred. The appeal filed against the judgment of the District Court was dismissed on the same ground that the application under section 7 wa3 barred by time. Leave to appeal has, therefore, now been sought. Learned counsel inter alia contended that the reasons which prevailed with the learned two Courts below are different though conclusion reached is the same. Regarding the reasoning by the learned District Judge, it is contended that it is based on the misreading of a date. If that misreading had not taken place. the period spent before other forums could have been excluded under section 14 of Limitation Act. It was so after excluding the time requisite for obtaining a necessary copy of judgment of the High Court the underlined observation which was to be relied upon, when presenting the application before the District Court Otherwise, it might have been dismissed forthwith under section 3 of the Limitation Act; as section 5 prima facie, was not applicable ‑‑See C.A. No. 26 of 1964 decided by this Court on 4‑4‑1967.

3. Learned counsel also contended that the petitioners being vendees and having spent considerable amount have had no opportunity of hearing on merits at any stage during the last fifteen years. It is, perhaps, in this light that learned Judge in the High Court also in the first round of litigation coming upto it, observed that when the proceedings are initiated under suction 7, they will be adjudicated upon, on its own merits and of course in accordance with law. These features of the case and other contentions raise an important question: whether the law cannot at all come to the assistance of the petitioners is so far as the hearing of the case on merits, at least once, is concerned‑‑can this Court dispense justice in this behalf, if not any other Court on account of some technical constraints. Leave to appeal is, accordingly, granted. Security Rs.5,

000. M.A.K./M‑911/S Leave granted.