2006 PLP 778 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This appeal with the leave of the Court is directed against judgment, dated 25-10-1995 passed by Lahore High Court whereby review petition being No.104 of 1995 was allowed as a result whereof judgment dated 7-7-1993 dismissing writ petition of the private respondents was set aside.

2. Precisely stating facts of the case are that respondents Nos.4 to 205 got allotment of residential plots measuring seven Marlas each situated in Chak No.151-GB vide Mutation No.223 dated 15-12-1988 (wrongly mentioned as 13-10-1988 by High Court) attested by Assistant Commissioner/Collector, Toba Tek Singh in pursuance of his order, dated 19-3-1988 under Punjab Jinnah Abadis for Non-proprietors in Rutal Areas Act, 1986 (Act No.III of 1986). There after respondents filed appeal before the Deputy Commissioner, Toba Tek Singh claiming therein that the allotment of plots may be given to them in Chak No.295-GB, instead of Chak No.151-GB, Toba Tek Singh. Appeal was dismissed by the Deputy Commissioner vide order, dated 5-10-1992. Against this order respondents filed Writ Petition No.11649 of 1992 before the Lahore High Court, which was dismissed on 7-7-1993, concluding observations there from reads as under: "As to the contention that the Deputy Commissioner acted without jurisdiction in rejecting the appeal as barred by time, suffice it to say that the Mutation No.223 dated 13-10-1988 was sanctioned in the name of the petitioners and they were seeking review of this mutation without challenging the impugned order by which plots were given to them in Chak No.151/GB. It emerges from the record that the Deputy Commissioner held the appeal as barred by time counting the period of limitation from the mutation attested on 13-10-1988 and in this way, he has not committed any illegality in holding that the appeal was barred by time. In any case this issue has become irrelevant/immaterial when the petitioners have no legal right to claim plots in Chak No.295/GB."

3. Against above judgment, respondents filed a review petition on 16-10-1995 being No.104 of 1995 along with an application signed by one Allah Rakha seeking condonation of delay in filing of review on the ground that respondents had no knowledge about the dismissal of their writ petition on 7-7-1993, therefore, on coming to know about passing of the adverse order against them, he has filed review petition, which may be allowed. It is to be noted that learned counsel appearing for the respondents gave statement at Bar that Allah Rakha was one of the respondents but he was not attorney holder on behalf of remaining respondents. Learned Single Judge in Chambers of the High Court considered the request for condonation of delay and opined as follows: "Although the grounds for condonation are not very convincing. However, learned counsel has taken upon himself the responsibility that the letter sent by him has not been received by the petitioner. Reliance is placed on Muhammad Haleem v. H.H. Muhammad Naim PLD 1969 SC 270 to show that in the interest of justice a case dismissed in default can be restored even if, strictly speaking, there is no sufficient cause for restoration of the same. On facts and circumstances of the case, delay if any in filing the review petition is condoned."

4. It is also important to note that during the hearing of the review petition before the High Court a report was also called for from the Revenue Authorities, who submitted that the land in Chak No.295-GB was not free from encumbrance coupled with the fact that in the judgment, dated 7-7-1993 it was held that the petitioners had no right for allotment of land in Chak No.295-GB concluding para. there from is reproduced herein below:-- "In view of what has been said above, the review petition is allowed and A.C. Toba Tek Singh is directed to examine the case of petitioners for allotment of land under seven Marlas scheme in Chak No.295/GB and allot the same if it is available. Petitioners will have full opportunity to produce evidence before the said Officer regarding availability of land. In case of allotment in Chak No.295/GB Toba Tek Singh in favour of petitioners, the allotment in their names in Chak No.151/GB will automatically be cancelled. There is, however, no order as to costs."

5. Against the above order leave to appeal was granted to consider, inter alia, whether the High Court was justified in reversing the order passed in Writ Petition No.11649 of 1992.

6. No one has appeared on behalf of the appellants despite of the fact that on the last date of hearing Mr. M.A. Zaidi learned Advocate?-on-Record appeared and stated that Mr. Mahmood-ul-Islam, learner: Advocate-on-Record has given him authority to appear and the appellants have engaged Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court. As in instant matter important questions of public importance and law with regard to (i) the allotment of the property in favour of the respondents, for which they have got no entitlement (ii) delay in filing review petition after a considerable period has been condoned and (iii) as per the Revenue Officer's report, the land was not free form encumbrances, therefore, we have decided to dispose of the case on merits instead of dismissing the same in default.

7. Learned counsel for the respondents supported the impugned order by justifying condonation of delay on the ground that as the respondents had no knowledge about passing of the order, dated 7-7-1993, therefore, as soon as they learnt about it they rushed to the High Court and filed the review petition, therefore, from the date of their knowledge, the petition for review was within time.

8. We are afraid, the contention is not correct, firstly there is no convincing material on record that after passing judgment by the High Court on 7-7-1993, respondents were not informed that their writ petition had been dismissed. Secondly, as far as Allah Rakha, who had A filed application and affidavit for condonation of delay is not an attorney holder, therefore, he, in his individual capacity, cannot plead the cause of the remaining respondents, thirdly, nothing is on record that on the basis of which material the request of Allah Rakha to condone the delay was entertained, contrary to existing law on the subject. It is well-settled principle of law that if delay has occurred in instituting the proceedings, it becomes the responsibility of the party seeking condonation of delay to explain the delay of each day. It is also to be noted that learned Judge in Chambers of the High Court has himself opined that no ground is made out for condoning the delay but surprisingly, by placing reliance on the judgment in the case of Muhammad Haleem v. H.H. Muhammad Naim PLD 1969 SC 270 has condoned the delay by applying altogether C different principle, which was not attracted at all, as per the facts of the case in hand. Therefore, we are of the opinion that learned High Court was not justified to condone the delay in view of the given circumstances of the case.

9. In addition to above, Honourable Judge in the Chambers of the High Court, who had decided the writ petition filed by the respondents on 7-7-1993 has held that appeal before the Deputy Commissioner was time-barred, therefore, the same was rightly dismissed. It is to be noted. that once the appeal was not filed in time before the Appellate Authority how the writ or review petition was competent because before approaching the High Court for redressal of the grievance-by invoking its Constitutional jurisdiction under Article 199 of the Constitution, it was incumbent upon the respondents to have availed alternative remedies according to law. It is equally important to note that once it has been held vide judgment dated 7-7-1993 that the petitioners have got no legal right to claim allotment in Chak No.295-GB instead of Chak No.151-G.B. there was no question for review of earlier order on any legal premise coupled with the fact that land in Chak No.295-GB was not free from encumbrances.

10. In view of above discussion, appeal is allowed consequently impugned judgment is set aside. S.A.K./M-910/SC?????????????????????????????????????????????????????????????????????????????? Appeal allowed.