P L D 1973 Lahore 573 (PLP)

A.R.SHEIKH, J.

Property bearing No. B‑III‑1‑S‑52 is a three storeyed building comprising 22 rooms, situate at G. T. Road, Gujranwala. As per allotment order of 22nd November 1950,. Munawar Din respondent (since died), along with Gulzar Ahmad, was allottee of the ground floor at a part of the first floor. The two barsatis at the top‑floor stood allotted to Nizam Din appellant by Order dated the 18tb/20th of July 1951. The Deputy Settlement Commissioner gave the entire building to Munawar Din as an indivisible unit against his CH form excluding Nizam Din appellant, also a claimant, and one Waqar Ahmad, another claimant (who has since faded out). Nizam Din and Waqar Ahmad filed separate appeals which were disposed of by the Additional Settlement Com missioner by a single order wherein he dismissed Niaam Din's appeal on the ground that he had no locus standi as he is in possession of less than one‑third of the total covered area. While rejecting Waqar Ahmad's appeal, the Additional Settle ment Commissioner called for a report from the Deputy Settlement Commissioner in respect of the allotment of another house to Munawar Din and conversion of the portion in Munawar Din's possession into a factory and non‑transferability thereof under the Scheme for houses. Feeling aggrieved Nizam Din preferred a revision petition before the Settlement Commissioner but remained unsuccessful. The same was the fate of his second revision petition before the Chief Settlement Commissioner before whom he failed to appear and the revision petition was dismissed also as time‑barred. Before this Court, Nizam Din urged that the respondent had obtained the transfer of another house (No. XVIII‑6‑S‑22) and the house in dispute could, therefore, be not transferred to him. The learned Single Judge finding that the said other house had been transferred to Munawar Din's son in his own right on the basis of his own claim (as held by the Settlement and Rehabilitation Commissioner) agreed with the Settlement Authorities that this transfer would not operate as a bar to the respondent's obtaining the house in, dispute for himself.

2. In this Letters Patent Appeal the following three contentions were raised at the time of preliminary hearing :‑ "(1) that the respondent, Munawar Din, had applied only for the half portion of the building as would be clear from his CH form at Annexure `J' to the petition but the Settlement Authorities have transferred to him the entire building, without the appellate and the revisional authorities having adverted to the question of divisibility of this large house ; (2) that in case the house is treated as being indivisible then the appellant would be entitled to the same by virtue of his prior occupation from 1st January 1948; and (3) that in any case the respondent had already obtained the transfer or another house, and he could not be permitted to surrender that transfer after obtaining the house now in dispute." The learned Bench repelled the second and the third contentions and admitted the Letters Patent Appeal for consideration, of the first contention only.

3. During the pendency of the Letters Patters Appeal, Munawar Din died on the 13th of February 1968, and his legal representatives having not been brought on the record within tire period prescribed, the appeal abated on the 13th of May 1968. However, the application under Order XXII, rule 4, C. P. C. made on the 8th of July 1968, was allowed subject to all just exceptions. Learned counsel for the legal representatives strongly objects to their impleading. It is firstly contended that the application under Order XXII, rule 4 cannot be entertained as one for setting aside the abatement under Order XXII, rule 9, C. P. C. The averments made in the affidavit appended to the application as to absence of knowledge of the death of Munawar Din (who lived in another house) and time taken for ascertaining the names and full particulars of the legal representatives have been controverted by the legal representatives in their counter‑affidavit. They have further placed two affidavits on the record (on the 19th of December 1972) saying that the appellant had participated in the funeral of the deceased Munawar Din. They have also produced a copy of the Daily Nawa‑i‑Waqt of 14th February 1968, wherein a news item as to the demise of one Munawar Din appears. The appellant has filed a rejoinder denying the allegation as to his participation in the funeral of Munawar Din. On the basis of the news item and the affidavits placed on the record by the legal representatives of the deceased, it has been vehemently urged that the story of absence of knowledge of the death of Munawar Din is incorrect. On the other hand, learned counsel for the appellant argues that the application under Order XXII, rule 4 may be treated as one under Order XXIf, rule 9, C. P. C. He has also invited our attention to the said news item in the Daily Nawa-i- Waqt wherein it has been clearly mentioned that the Janaza of the deceased shall start from 6‑Gobind Garb, Gujranwala, a house other than the disputed house, which fact alone goes to support the appellant's version that the deceased was not living in the house in dispute and, therefore, the appellant could not be fixed with the knowledge of his (Munawar Din's) death as propounded by the opposite‑party. It has further been argued that the delay in filing an application for setting aside the abate ment may be excused in the special circumstances of the case as the appellant did not know the full particulars and addresses of the legal representatives of the deceased respondent. Counsel for the respondent also objects to the application under Order XXII, rule 4, C. P. C. being treated as an application under Order XXII, rule 9, C. P. C. We, however, do not consider the objection of any great merit because all procedure is for advancement of justice and not to stifle justice. There is ample authority for the view that an application filed after the prescribed period for impleading legal representatives of a deceased party may be treated as an application for setting aside the abatement and we have no hesitation in holding that the application filed under Order XXII, rule 4 may be treated as one under Order XXII, rule 9, C. P. C. The argument that ignorance of death is no excuse is not of much avail because no hard and fast rule can be laid down for the purpose and each case has to be decided on its own facts as to whether the belated approach for setting aside the abatement has been sufficiently explained. The explanation given in the affidavit has already been set out above and after giving earnest considera tion we are of the view that the delay for not moving an application within the prescribed period has been sufficiently explained in view of the fact that the parties have been at logger heads. Punjab Province v. Sultan Khan and others (P L D 1959 Lab. 500) is in point. The objection fails and is repelled.

4. Coming to merits, the only point argued before the learned Single Judge was in respect of transfer of a second house In favour of the deceased‑respondent's son, which contention was repelled on the ground that if the son has been transferred a house in his own right against his own claim, it would not in any manner deprive the deceased‑respondent of his right to have a house against his claim. This contention along with the contention that the appellant was in prior possession as compared with Munawar Din respondent and had a preferential right to transfer of the entire house was rejected by the learned Bench admitting the Letters Patent Appeal. The third point, on which the appeal was admitted to a full hearing, namely, that the respondent had applied only for the portion in his possession and not the entire building, is not being pressed by counsel for the appellant in view of the documents available on the original record, which we have summoned through the Departmental Representative appearing before us. Learned counsel for the appellant has, however, urged a new point which was not raised before the learned Single Judge or in the grounds of appeal or before the Admitting Bench in respect of conversion of part of the property by Munawar Din respondent and disposal thereof as an industrial concern and of the rest as a house to the appellant. It has been argued that as is evident from the order of the Settlement Commissioner, Malik Fateh Khan, it was pointed out to him that Munawar Din had Installed looms in the premises allotted to him, and, therefore, the con version of the premises and transfer thereof had to be determined with reference to the provisions pertaining to transfer of industrial concerns and not otherwise and this fact having been Ignored by all the Settlement authorities may be permitted to be raised in appeal as a pure question of law. In this respect, learned counsel has invited our attention to the report of the Deputy Settlement Commissioner submitted by him in compliance with the appellate order of the Additional Settlement Commis sioner. It has been argued that the factory has been reported to be a registered one as per report of the Deputy Settlement Commissioner, appearing at page 47 of the original record (copy placed on the present file), and transfer of the house in disregard of para. 15 (3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the instruc tions embodied in the Press Note dated the 3rd of May 1960 under para. 20 of the Settlement Scheme No. 1, appearing at pages 139 to 141 of the Settlement Manual, is illegal. The relevant provisions may be reproduced with advantage:‑

15.‑

(1) ....... .. (2) . .......... (3) If an industrial concern or a cinema house not allotted by the aforesaid Industries Rehabilitation Board, is in the possession of a displaced person or a local, then such concern or cinema house shall, in case he applies in that behalf, be transferred to him on payment of its prevailing market value minus the investment made, if any". "

3. As a general principle, the property will be disposed of according to the use to which it was being put on 20th December 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property. The following broad principles have, however, been laid down by the Chief Settlement Commissioner for the guidance of the Additional Settlement Commissioner‑ (i) (iii) .. (iv) A house or a shop converted into an industrial concern, which has not been allotted by the Industries Rehabilitation Board, may be disposed of as an industrial concern under sub‑pare. (3) of para. 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Aok 1958." Reliance has been placed on Mian Muhammad Abdullah and another v. The Chief Settlement and Rehabilitation Commissioner, Lahore and 5 others (P L D 1970 Lab. 915) and Abdul Jabbar v. Settlement Commissioner, Sheikhupura and others (1969 S C M R 114). It was further argued that the question of divisibility was not adverted to by the Settle ment Commissioner despite the fact that it was pointedly argued before him, and for that reason alone, the orders of the Settlements authorities are bad in law. Reference has been made to Altaf Hussain v. Chief Settlement Commissioner (P L D 1965 S C 68), Mst. Meraj Fatima v. Settlement Commissioner and others (P L D 1969 Lah. 532), Azam Beg v. Abdul Hafeez, Deputy Settlement Commissioner (1970 S C M R 182) and Sh. Khursheed Muhammad v. The Settlement and Rehabilitation Commissioner, Lahore and another (P L D 1971 S C 498). On the basis of the ratio decidendi of the aforesaid cases, the argument put forward is that the case has not been considered as that of an industrial concern under the aforesaid provisions of para. 15 (3) of the Schedule and the residential portion of the appellant not taken into consideration at any stage whatsoever. On behalf of the legal representatives, it has been contended that the point of disposal of the property partly as an industrial concern and partly as residential premises was not the appellant's case in the writ petition and it not being a pure question of law cannot be permitted to be raised for the first time in the Letters Patent Appeal. Reliance has been placed on Mumtaz Begum v. Sh. Inayat Ul1ah (P L D 1969 Lah. 16), Nabi Bakhsh v. Pakistan (P L D 1969 Kar. 566) and Mst. Zamro Jan and 5 others v. Fateh Khan and 4 others (1971 S C M R 385). It was further contended that the instructions Issued under para. 20 of Settlement Scheme No. I will not be applicable as there is no total conversion of the house in dispute. Alternatively, it was argued that the said instructions have been followed inasmuch as the use to which the property was put on the 14th of August 1947, has been considered and the property transferred as a house as is evident from the order of the Additional Settlement Commissioner passed on the 17th of March 1960 on the Deputy Settlement Commissioner s report and the impugned order of the Settlement Commissioner, who refused to invoke clause (iv) of para. 3 of the said instructions. It was maintained that the conversion and its extent is a question of fact and cannot be permitted to be raised for the first time in the Letters Patent Appeal when that aspect of the case had not been pressed before the learned Single Judge and as such will be deemed to have been abandoned.

5. The point on which a Letters Patent Appeal may be heard has been considered in a large number of authorities In the British India Courts, wherein it has been held that ordinarily it is not open to the parties in a Letters Patent Appeal to raise a contention which has not been pressed before the Court from the judgment of which the appeal is preferred. It was observ ed in Ebrahim Sherkhan Pathan v. Hajratkhan Mohiddinkhan (A I R 1940 Bom. 49) that in an appeal under the Letters Patent, the appellant is not entitled to be heard on points not raised before the Single Judge. Similarly, in Bhagwan Singh v. Barkat Ram (A I R 1943 Lah. 129) the plea of limitation having been considered to be a mixed question of fact and law was not allowed to be raised for the first time in Letters Patent Appeal. However, questions of law going to the root of the case have been permitted to be raised as an exception to the rule enunciated above. I am fortified in this view by the law laid down in Haji Abdullah. Khan and others v. Nisar Muhammad Khan and others (P L D 1965 S C 690). Next we have to see whether the plea of the property having been partly converted into an industrial concern, the extent of con version and effect thereof on the entitlement for transfer of the contestant claimants is a question of law pare and simple or a mixed question of fact and law. Admittedly, the summoning of the report as to conversion of the property into a loom factory finds mention in para. 3 of the judgment of the learned Single Judge. The record of the Department shows that a report was submitted in the affirmative on the question of conversion and the learned Additional Settlement Commissioner observed therein : "There is no further action required". This report and disposal thereof on the 17th of March 1960 by the Additional Settlement Commissioner must have been before the Settlement Commissioner on the 12th of May 1960 when he rejected the revision petition of the appellant further observing that "this (conversion) was done with the permission of the Rehabilitation Department. I see, therefore, no force in this petition for revision. "We have gone through the grounds of appeal and the revision petitions filed by the appellant before the Settlement authorities. We have also perused the grounds taken in the writ petition and the Letters Patent Appeal. All these documents are silent on the question now raised before us. The mention of the report in para. 3 of the judgment of the learned Single Judge is merely by way of narration of facts and, therefore, we have no hesitation in observing that the factual plea now attempted to be convassed in the Letters Patent Appeal was urged at no stage before the Settlement authori ties in the form and the manner now argued. There was a half hearted attempt to impress the Settlement Commissioner that because there has been a part conversion of the premises, the respondent is disentitled to transfer of the house as such and this plea was rejected by the Settlement Commissioner, keeping in view the aforesaid instructions on the subject, because conversion bad been made, according to him, with the permission of the Rehabilitation Department and he affirmed the transfer of the property as a 'house' to Munawar Din. In the circum stances when the plea was not taken in the grounds of the writ petition and was not even pressed before the learned Judge in Chambers, the same will be considered to have been abandoned. Further, the plea being a mixed question of fact and law cannot be permitted to be raised for the first time in the Letters Patent Appeal. When we say so, we are mindful of the fact that in a Letters Patent Appeal the whole case is reopened for adjudication as was observed in Nazir Ahmad v. Mehar Din (1969 S C M R 53), but the case is reopened as it was presented to D the learned Single Judge and not a new case, or rev pleas of fact or mixed questions of fact and law. The irresistible conclusion is that the new plea as put forward cannot be permitted to be raised and we refuse to entertain the same. In view of this finding of ours, we are not called upon to express any considered opinion on the merits of the plea.

6. For the reasons above, there is no substance in this Letters Patent Appeal and we dismiss the same. In the circum stances of the case, however, the patties are left to bear their own costs. Appeal dismissed.