P L D 1968 Lahore 903 (PLP)

WAHIDUDDIN AHMED, C. J.‑--This Letters Patent Appeal is from the judgment of a learned Single Judge in Writ Petition No. 2652/R of 1963, dated the 13th of July 1966. By this judgment the learned Judge dismissed the writ petition on grounds of laches.

2. In this appeal the dispute between the parties is in respect of House No. SW. 95‑R‑3/4, situated at Tibba Baba Farid, Lahore Road, Lahore. There are two identical portions of this house, known as Unit No. 3 and Unit No.

4. Out of the appellants who are four brothers : Mubarik Ali appellant submitted C. H. Form for the transfer of the said house. Sardar Alim Barney, respondent No. 5, also submitted a C. H. Form. Upper portion of Unit No. 3 is in the occupation of Muhammad Sharif and the lower portion is in that Mst. Sakina Bibi. Upper portion of Unit No. 4 is in occupation of Sardaar Alim Barney, respondent No. 5, and its lower portion is in possession of appellants and their mother, Mst. Barkat Bibi who died on 2nd of February 1966, during the pendency the writ petition and is represented by her four sons. The Settlement Authorities transferred the upper portion of Unit No. 3 to Muhammad Sharif and its lower portion to Mst. Sakina Bibi. There is no dispute between the patties in respect of this portion.

3. Unit No. 4 has been transferred in its entirety to respondent No.

5. The contention of the appellants is this unit they are in occupation of the lower portion since 1948, that Sardar Alim Barney, respondent it and tha t in possession of the upper portion in January therefore, the Settlement Authorities should have given preference to them in the matter of transfer of this portion of the property. In the alternative, it is contended that the Settlement Authorities should have considered the question of the divisibility of this Unit between the contesting parties.

4. Sheikh Abdur Rashid, learned counsel for respon dent No. 5 has contended that the learned Single Judge has dismissed the writ petition on the ground that it was belated one. The important question for considera tion in this case, therefore, is whether the learned Single Judge exercised his discretion, vested in this Court under Article 98 of the Constitution, arbitrarily or capriciously, or it is based on sound judicial principles. It will be noticed that Unit No. 4 was transferred to respondent No. 5 on 10th of January 1960. The appeal filed by Mubarik Ali was dismissed on the 30th of April 1560, by the Additional Settlement Commissioner. The revision filed before the Settlement Commissioner was dismissed on the 14011 of November 1960 and the second revision petition was dismissed on 12th of May 1962. The appellant filed the above writ petition on 4th of November 1963, i.e., after the lapse of about eighteen months from the date of tire last order passed against them.

5. In order to claim condonation of delay, Mian Muzaffar Ahmad, the learned counsel for the appellants, has contended that the appellants were advised by their counsel to obtain certain copies necessary for the writ petition and on, of the certified copies was supplied to them on 30th of September 1963. As such, there was a delay of only two months and the learned Single Judge should have condoned the delay. In our opinion, the contention of the learned counsel has no force. At best, the certified copies of the documents which were necessary for we decision oaf the writ petition could only be the orders of the Deputy Settlement Commissioner, Additional Settlement Commissioner, Settlement Commissioner and the Chief Settlement Commissioner. The copies of these documents admittedly were supplied to the appellants by August 1962, The appellants, however, did not approach the Court immediately. On 24th of August 1963. they applied for the certified copy of the C. H. Form filed by respondent No. 5 which was supplied to them on the 30th of September 1963. There is no explanation as to why they did not tam any steps from September 1962 up till the 24th of August 1963, for filing the writ petition?. The only explanation that could be given by the learned counsel for the appellant was that the papers were with their counsel and, therefore, the delay was caused in applying for the certified copy of the C. H. Form. In these circumstances, it is quite clear that the appellants have bean negligent and it is riot possible for us to hold that the learned Single Judge has exercised the discretion vested in him in an arbitrary or capricious mariner. It will be useful here to reproduce the observations of the learned Single Judge on this aspect of the case:‑-- "Learned counsel for the petitioners contended that the delay took place in obtaining the copy of the C. H. Form (Annexure B). It appears that the petitioners applied for the copy of the C. H. Form on 24th August 1963, which was supplied to them on 30th September 1963. As already stated, the impugned order was passed on the 12th May 1962. As such, the petitioners applied for the copy of the C. H. Form after 15 months of the passing of the impugned order. In these circumstances, no reasonable explanation is forthcoming for the inordinate delay of eighteen months in filing the writ petition. Reference may be made to a ruling reported as P L D 1960 Dacca 1025 where a delay of one year after the accrual of cause of action was considered fatal. Similar observations were made in P L D 1963 Lab. 352 where certiorari was refused on the ground of laches because the petitioners had filed the petition after three months of the impugned order. I accordingly dismiss the petition on the ground that it is a belated one." It will be noticed that the learned Single Judge found the writ petition belated as there was no explanation forthcoming for the inordinate delay of eighteen months in filing the writ petition. We had taken into consideration the fact that the appellants applied for the certified copy of the C. H. Form after fifteen months of the passing of the impugned order. In coming to the above conclusion, he has further relied on two decisions, namely, Mst. Fahmida Nayyar v. Government of West Pakistan and others (P L D 1963 Lah. 352) and Sabir Ahmed Chaudhri v. Province of East Pakistan (P L D 1960 Dacca 1025). In the first case the writ of certiorari was refused on the ground of laches because the petitioner had filed the petition after the lapse of three months of the passing of the impugned order. In the second case the writ petition was disallowed because there was a delay of one year after the accrual of the cause of action.

6. Mian Muzaffar Ahmed, the learned counsel for the appellants, contended that the writ petition was admitted by at learned Single Judge of this Court on the 24th of February 1964, and by the admission order delay was impliedly condoned. In support of this contention, he has relied on Habibullah Khan and others v. Pakistan and others (P L D 1907 Kar. 300). This decision has no material hearing on the facts of the present case. Learned counsel further contended that delay and laches should not be one of the considerations in exercising discretion under Article 98 of the Constitution. A similar contention was raised before their Lordships of the Supreme Court in Mst. Noor Jehan Begum v. Abdul Majid Shaida and another (L N (1967) N U C S C 15) and their Lordships repelled this contention. Their Lordships observed that delay and laches are good grounds for refusing to exercise discretion vested in the High Court under Article 98 of the Constitution.

7. Moreover, in a Letters Patent Appeal it is not open to a Letters Patent Bench to substitute its own opinion in matters where the learned Single Judge has exercised his' discretion unless it is based on arbitrary and capricious considerations. This point was considered by a Division Bench of the Lahore High Court in Hanuman Chamber of Commerce Ltd. v. Jasa Ram Hira Nand (A I R 1948 Lah. 64). In that case which was under the Arbitration Act, it was held that the jurisdiction conferred by suction 34 is of a discretionary nature and where the discretion has been exercised by the trial Judge and the decision has been confirmed in appeal by a Single Judge of the High Court, the High Court will not interfere in Letters Patent Appeal with the exercise of discretion unless it is capricious or arbitrary. Sam: view was expressed in State of Andhra Pradesh v. Tavvineni Gangappa and another (A I R 1958 And. Prad. 140), a decision from the Indian jurisdiction. It was held in that case that where a Judge in exercise of his jurisdiction issues a writ under Article 226, the decision should not be interfered with unless the appellate Court be clearly satisfied about the exercise of discretion being erroneous or improper.

8. Considering the present case in this light, it is perfectly clear to us that this is not one of those cases in which it can be said that the learned Single Judge has exercised discretion on erroneous or improper consideration. The appellants are guilty of delay and laches and no reasonable explanation has been forth coming for taking so much time for invoking the extraordinary jurisdiction of this Court. We would, therefore, hold that in the circumstances, the learned Single Judge was fully justified in declining to exercise jurisdiction vested in him in the present case. The appeal is dismissed with no order as to costs. Appeal rejected.