1999 PLP 2049 (MLD)

5. The petitioners thereafter filed application under section 12(2) C.P.C. before the Chief Settlement Commissioner-respondent No. l who vide impugned order dated 6-6-1994 held that the case was not pending at the time of repeal of the settlement laws through Act XIV of 1975, he has no jurisdiction to determine whether the disputed property is evacuee or non-evacuee, and refer 'the matter to Civil Court against which the present petition has been instituted. 5-A. Learned counsel for the petitioners contends that the disputed property is owned by Muslims was neither treated as evacuee property nor had it ever become a part of Compensation Pool. It was not included in the auction list of properties auctioned on 22-8-1960. In the settlement record the entries do not show that this property was ever auctioned in 1960. Only in the bid-sheet the same has been fraudulently shown. The bid-sheet is a fabricated document. Not a penny was paid by the so-called auction-purchaser towards the auction price. Till repeal of the settlement laws, the transfer order was not issued and amount of Rs.35,168 was deposited by respondent No.4 on 29-8-1984. As regards the adjustment of remaining amount through compensation books, the inquiry shows that no compensation book was ever presented for this purpose and remaining amount of Rs.87,332 was paid by respondent No.4 in the year 1989. Till issuance of transfer order, it was a pending matter. Therefore respondent No. 1 was competent to hold an elaborate inquiry to declare whether the property is evacuee or non-evacuee and the fraud played by respondent No.4 with the department could be gone into by him. Learned counsel has relied upon the report of the Director-General Legal Cell dated 4-8-1992 in this context. He- further submits that forged and fictitious documents were prepared by the contesting respondent and produced before the Chief Settlement Commissioner and the property of Mst. Namwar Khatun, Predecessor-in-interest of the petitioners, has been illegally treated to be an evacuee property and transferred to respondent No.4. Respondent No.1 is competent to examine the entire case as the allegation of fraud is attributed to the department itself and he is the best person to hold a detailed inquiry by collecting and .going through all relevant material documents to find out the truth. He has relied upon 1997 MLD 2955, PLD 1975 SC 331 and 1989 SCMR 819 and submits that the impugned order is not sustainable in the eye of law, it may be quashed and direction be given to respondent No. l for disposal of the case on merit.

6. Learned counsel for respondent No.4, on the other hand,. while relying upon 1994 SCMR 150 which also finds mention in the impugned order, submits that the matter was not pending at the time of repeal of settlement laws, therefore, jurisdiction of respondent No.1 was ousted. He supports the impugned order and submits that the petition is liable to be dismissed.

7. Mr. M.Z. Khalil, Advocate appearing on behalf of the Settlement Department submits that since full price was not paid by respondent No.4 at the time of the repeal of Act and ,no transfer order was issued, therefore, it was a pending matter and respondent No. 1 was competent to decide it on merit.

8. I have heard the learned counsel for the parties and perused the record with their assistance.

9. According to respondent No.4 the disputed property was included in the auction list as Item No.7 and purchased by Mst. Nafees-un-Nisa on 22-8-1960 for Rs.1,22,

500. The bid-sheet contains a certificate that in case of withdrawal of the bid 1/4th of the bid money would be forfeited. It also shows the thumb impression of Mst. Nafees-un-Nisa about receipt back of the Compensation Book No.312-719/LHR-VI-2094 which was deposited for participating in the auction. Report dated 25-9-1961 reveals that a sum of Rs.70,000 was adjusted being more than 1/2 of the auction price and P.T.O. was ordered on 27-9-1961 to be issued and then P.T.O. No.351284 was issued in her name on 3-10-1961. The auction-purchaser on 20-11-1963 entered into an agreement of association with Mst. Alam Bibi for adjustment of further sum of Rs.11,400 out of her Compensation Book No.192203/LHR-VI-1777 leaving a balance of Rs.35168. The record further reveals that auction-purchaser further entered into an agreement of association on 19-10-1973 with respondent No.4 for surrendering full rights in the property in his favour, which was approved on 22-10-1973. Ultimately after 11 years on 29-8-1984 he deposited Rs.35,168 as balance of the price and Rs.613 as settlement fee and applied for issuance of T.O. The payment through book adjustment as referred above was not found in record nor any payment was entered in the register CSC-V, whereupon respondent No.4 deposited Rs.87,332 on 16-11-1989 and thereafter T.O. was issued in his favour on 22-4-1992. The documents relied by the department while issuing T.O. in favour of respondent No.4, according to the petitioners, are forged and fabricated. The property was neither treated as evacuee before 1-1-1957 nor any evacuee owner had any interest therein.

10. Whether the property in dispute is evacuee or non-evacuee, this is a question to be determined by the competent forum. Deliberately I am not touching this issue at this stage. Unfortunately the litigation is pending between the parties since long. Respondent No.l and the Civil Court are in doubt regarding their jurisdiction to decide the issue involved in the case. At present I am only concerned with the question of jurisdiction whether it is respondent No. l or the Civil Court competent to decide the nature of the property. Respondent No.4 filed W.P. No. 185-R of 1992 against the assumption of jurisdiction by respondent No.

1. On the application of the petitioners under section 12(2), C.P.C. read with section 151, C.P.C. instituted on 27-6-1992 claiming that the property transferred to him was non-evacuee. The objection of respondent No.4 was that after the repeal of the Displaced Persons and Evacuee Property Laws, respondent No. l had no jurisdiction whatsoever to examine the character of the property. In that writ petition pre-admission notice was issued to the petitioners for 5-10-1992. The petitioners (respondents therein) argued before the High Court that the property in question was procured by respondent No.4 through practising fraud on the department and by manufacturing bogus record. They further asserted that the property was never included in the auction list. So, the petitioner therein was directed to place on, record the order of competent Authority whereby the property in dispute was ordered to be disposed of through public auction and also the list of auction showing that the property in dispute was included therein. The case was adjourned to 14-10-1992, when the petitioner therein stated that he had applied for copies of the requisite documents/orders but the same had not been supplied to him. Mr. Hamid Ali Mirza, Advocate entered appearance on behalf of the Settlement Department and stated that he was in possession of the relevant files and learned counsel for the petitioner could inspect the same. The case was subsequently adjourned. The petitioner therein, however, submitted an application for withdrawal of the writ petition on the ground that he had already filed civil suit in respect of the property in dispute. Consequently, the writ petition was dismissed as withdrawn on 31-10-1992 (Annexure F/3). Later on the suit filed by respondent No.4 was dismissed by the learned Civil Judge for lack of jurisdiction on 12-7-1993, copy of which is attached as Annexure-G. He filed appeal against the aforesaid order which was also dismissed by learned Additional District Judge on 19-3-1994. After withdrawal of Writ Petition No.185-R of 1992, respondent No.1 took up the matter and while relying upon 1994 SCMR 150 refused to exercise his jurisdiction and observed that the petitioners may move the Civil Court of competent jurisdiction to get the issue decided and the petition was dismissed as incompetent. Respondent No.1 has failed to go through the judgments relied upon by learned counsel for the petitioners and cited at page 3 of the impugned order. Section 2, subsection (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 provides as under: -- "Section 2(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid. (3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate."

11. It is an undisputed fact that transfer order was issued in favour of respondent No.4 on 22-4-1992. The final payment of the auction price, according to his own showing, was made on 16-11-1989 although part of the B price had been deposited on 29-8-1984. The matter is deemed to be pending with the Settlement Department unless the entire auction price is paid. Both the parties are making allegations of fraud against each other. The Civil Court has refused to entertain suit of the respondent No.4 holding that it has no jurisdiction to go into the question of fraud committed in the Settlement Department and fabrication of bogus and fictitious documents. Sultan Hassan's case relied upon by respondent No.1 is not attracted to the facts of the present case. In that case P.T.D. was issued prior to the repeal of the Act whereas in the instant case T.O. was issued after repeal of the Act and the matter was pending at the time Act XIV of 1975 was passed. In the case of Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) the contention was that as a tribunal of special or limited jurisdiction possesses only those powers which are conferred on it by the relevant statute, it is not open to such tribunal or authority to suo motu recall an order obtained from it by fraud unless statutory provision exists in this behalf. The only course open to such tribunal, it was urged, is to file a civil suit under section 9, C.P.C. Repelling this contention, the Supreme Court held: -- "While there are cases in which the power of a Court or Tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. Even a tribunal of limited or special jurisdiction has the power to suo Motu recall or review an order obtained from it by fraud. " Similarly, in case of Shamrooz Khan v. Muhabbat Khan and another (1989 SCMR 819), it was observed: -- "Custodian of record is the best Judge, in first place, to determine about veracity, correctness and genuineness of its own record. Such Tribunal should have been given opportunity to discharge its duty in that respect. Review of adjudication could have taken place in High Court only after adjudication of same by Tribunal/Settlement Authority Impugned judgment of High Court was set aside and case was remanded to Settlement Authority to proceed with determination of allegations relating to forgery of its record."

12. It is specifically alleged by the petitioners that settlement record has' been fabricated and forged and fraud has been played by respondent No.4 in procuring transfer order whereas case of respondent No.4 is that it was an evacuee property and has rightly been transferred to him and claim of the petitioners is based on fraud. All these things can properly be gone into by respondent No.1 or notified officer. The impugned order -is not in consonance with the aforesaid judgment of the Supreme Court which also finds reference in the latest case Dr. Abdul Waheed and others v. Commissioner/Settlement Commissioner, D.I. Khan Division, D.I. Khan and others (1997 MLD 2955) wherein it has been held that:-- "Order of transfer of property having been obtained through fraud was voidable order Court or Tribunal of limited jurisdiction under inherent powers could suo motu set aside the same."

13. Relying upon the aforestated authorities of the Supreme Court, I am of the considered view that respondent No.1 Notified Officer is competent to hold an elaborate enquiry into the allegation of fraud, and examine the entire evidence to find out the nature of the disputed property whether it is evacuee or non evacuee and whether it was auctioned as alleged by respondent No.4 and in case it was not declared as evacuee property before 1-1-1957 what is its effect? All these points shall be examined and case shall be decided on merit by respondent No. 1 after hearing the parties, as early as feasible. Resultantly, the impugned order, dated 6-6-1994 passed by respondent No.1 is set aside. The case is remanded for decision on merit in the light of observations made herein. The application of the petitioners under section 12(2), of C.P.C. shall be deemed to be pending in the Court of respondent No.1 for further proceedings. H.B.T./F-69/L Order accordingly.