P L D 1969 Lahore 880 (PLP)

(2) The respondent will get the entire ground floor. Deorhi will remain common with existing easement rights." It will thus be noticed that the entire first floor was given to the respondent No. 5, deceased Ghulam Muhammad, and respon dent Muhammad Ismail. The petitioner challenged this order in revision which was dismissed by the Settlement Commissioner on the 22nd of June 1961. The learned officer held that "the objection of the petitioner that the respondent had not given the form at the time the Deputy Settlement Commissioner decided the case has not much value because the Additional Settlement Commissioner could condone the delay in filing the form by 15th July 1960. "According to the learned officer, as the Additional Settlement Commissioner had decided the case on the 29th of June 1960, the presumption was that he condoned the delay in submitting the form. The matter was then taken before Mr. Malik Muhammad Akram Khan, Settlement Commissioner with powers of Chief Settlement Commissioner who dismissed it on 24th of December 1963, on the ground that the record of` the case had not been summoned before the 13th of January 1962. This order is being challenged in the present writ petition before me.

3. Two preliminary objections have been raised on behalf of respondent Muhammad Ismail :‑ Firstly, that the writ petition is liable to be dismissed because it was filed against a dead person, Ghulam Muhammad ; and Secondly, that the writ petition suffers from laches, as the de ceased died before April 1964, in which month the writ petition; was filed, and his legal heirs were substituted under Order I, rule 10, C. P. Code in November 1968, after a lapse of four ears, and therefore, the petition suffers from. laches.

4. In my opinion, the objections raised on behalf of the respondent have no force. It will be noticed that the decision in, Municipal Corporation of Karachi v. Beradio Jummoo Mughal (A I R 1946 Sind 20) on which the learned counsel for the respondent has relied, is a case in which the suit was riled against a dead person and he was he only defendant in the case. It was in that context that Thadani, J. deserved that where a suit is filed, against a dead person, a Court has no jurisdiction to grant an application under Order I, rule 10, or under Order XXII, rules 4 and 9 or do any other act authorised by the Civil Procedure Code". Mr. Nisar Ahmad, learned counsel for the respondents, has further relied on a Lahore decision reported as Roop Chand v. Sardar Khan and others (A I R 1928 Lah. 359), wherein a Divi sion Bench of the Lahore High Court has held that, that "where a suit is brought against a number of defendants, one of whom happens to be dead at the time of the suit, the Court ought not to dismiss the suit against the other defendants but should strike; off the same of the former under Order 1, rule 10; and proceed against the other defendant. This exactly what has been done in the present case. The name of Ghulam Muhammad has been struck off and in his place the names of his legal heirs have beer: substituted under Order 1, rule 10, C. P. Code. The same view was taken in Firm Pala Mal‑Narain Mal v. Fauja Singh (A I R 1926 Lah. 153).

5. Mr. Gul Muhammad, learned counsel for the petitioner, has referred me to a decision of the Allahabad High Court in Bala, Prasad v. Radhey Siam (A I R 1934 All. 25). In this case a suit was tiled against several defendants, one of whom was dead at the time of the institution of the suit. It was held by a Division Bench of the Allahabad High Court that "the suit cannot be considered to have been instituted against. the dead person, but it cannot be said that there is no, validly instituted suit against anyone. In such a case the Court can exercise all the powers which the Civil Procedure Code confers on it as regards addition of parties and amendment of the plaint." It was further held in this case that where a Judge has proceeded on the assumption that a Court has no jurisdic tion to order addition of parties to a suit in which one of the defendants died before the institution of the suit, lie has failed to exercise a jurisdiction vested in him. A similar view was expressed in Ghulam Qadir Khan v. Ghulam Husain and others (A I R 1937 Lah. 794). In this case at the time of proper institution of the suit the list contained the names of .two dead persons and on being apprised of the fact the plaintiff replaced them by their legal representa tives. It was held that no question of abatement arose in the case. At most it could be considered that no defendants were added for the first time on 20th May 1935. This, according to the learned Judges of the Division Bench, was immaterial for the limitation but obviously had nothing to do with the abate ment. In the light of the above discussion, it is quite clear that the petitioner was competent to add to the cause title of the writ petition the names of the regal heirs of deceased Ghulam Muhammad under Order I, rule 10, Civil Procedure Code.

6. The next contention for the learned counsel for the respondent that the writ petition suffers from laches because the legal heirs of deceased Ghulam Muhammad were brought on the record in November 1968, has also not impressed me. Admittedly, the writ petition was filed in April 1964. The petitioner, therefore, has approached this Court in 1964 against the order of the Chief Settlement Commissioner passed on the 24th of December 1963. The writ petition was filed by him against a member of respondents. Muhammad Ismail, one of the respondents in whose favour the property was transferred, was also a party to it. The mere fact that the legal heirs of deceased Ghulam Muhammad were brought on the record at a later stage will not render the petition to suffer from laches. I would, E therefore, overrule the preliminary objections raised on behalf of respondent No.5.

7. Coming now to the merits of the case, it will be noticed that the property in dispute was transferred to the petitioner on the 11th of December 1959. This order was passed behind the back of deceased Ghulam Muhammad and respondent Muhammad Ismail. The moment they learnt about the order of the Deputy Settlement Commissioner, it was challenged before the additional Settlement Commissioner by appeal dated the 11th of January 1960. The contesting respondents also filed a belated CH Form before the Additional Settlement Commissioner which was admitted on certain condi tions. The matter was then heard by the Additional Settlement Commissioner who, on merits, came to the conclusion that the property in dispute was divisible and transferred the upper portion to the respondents and the ground floor to the petitioner. In my opinion, the order of the learned Additional Settlement Commissioner on the facts of the present case, was valid and had done substantial justice between the parties.

8. The contention of Mr. Gul Muhammad, learned counsel for the petitioner that the Additional Settlement Commis sioner was not competent to accept the CH Form of the respon dents after the property had been transferred to the petitioner is against the view of this Court in Mst. Bakho v. Sairan and another (P L D 1963 Lah. 72). It was held in this case by Sardar Muhammad lqbal, J. that "the simple fact that the Deputy Settlement Commissioner had passed an order of transfer will not, by itself, take the property out of the compensation pool as contemplated by section 10 of the Displaced Persons (Compensation and Rehabi litation) Act, 1958, and the argument that this section was a bar to the entertainment of another application is, therefore, not tenable." I am in respectful agreement with these observation. Admittedly, the Chief Settlement Commissioner has been extend ing time for filing of NCH, CH and other Forms and had extended the period for filing such forms up to 15th of July 1960, as is apparent from the press‑note dated the 12th of July 1960, repro duced at page 157 of the old Settlement Manual. According to the view of the Supreme Court in Ch. Altaf Hussain and others v. The Chief Settlement Commissioner arid others (P L D 1965 S C 68), the parties were entitled to file their forms within the extended period. In this connection, their Lordships at page 78 of the Report observed as under :‑ "But an application claiming compensation is to be dis tinguished from a claim form requesting for transfer of a particular property in lieu of the assessed compensation for a verified claim. None of the provisions referred to, therefore, can be invoked to import a limitation of time for such claim forms though for reasons of convenience a Chief Settlement Commissioner may call for applications by a certain date. This would not, however, imply that a claim form accepted after such a date would necessarily be illegal. On this score, therefore, the second claim form of Mr. Altaf Husain could net be declared as invalid as the learned Letters Patent Bench of the High Court seems to have done. To do so would amount to making a fetish of a technicality. At the relevant point of so‑called time no order extending the period of limitation existed but subsequently the door was repeatedly opended for letting in such forms." In view of the above observations I am satisfied that the learned Additional Settlement Commissioner was perfectly justified in accepting the CH Form filed by respondent Muhammad Ismail and deceased respondent Ghulam Muhammad on 18th of February 1960, and in transferring a portion of the property to them on its basis.

9. It was next urged by Mr. Gul Muhammad, learned counsel for the petitioner, that the appeal filed by the respondents was barred by limitation and, therefore, the learned Additional Settlement Commissioner was not competent to pass the impugned, without condoning the delay. According to the learned counsel, this point was also raised in revision but the learned Settlement Commissioner failed to take notice of it. It was contended by learned counsel for the petitioner on the basis of a recent decision of the Supreme Court reported as Ahsan Ali v. The District Judge and others (P L D 1969 S C 167) that an order passed in such circumstances is void. This contention or the learned counsel has also not impressed me. In the first place, no question of limitation was involved in the present case. It will be noticed that the property in dispute was transferred to the petitioner on the 11th of December 1959, behind the back of the respondents. The respondents were not aware of the order of transfer made in favour of the petitioner till they filed the appeal on the 11th of January 1960, i.e., within a period of about one month. Some time must have been taken by them to procure the copy of the order transferring the property in dispute in favour of the petitioner. Since the order was passed behind the back of the respondents, the appeal filed by them was well within time. Moreover, the question of limitation was not urged by the petitioner before the Additional Settlement. This is quite obvious, as no reference to it has been made in the impugned order of the Additional Settlement Commissioner. It is true that the question of limitation was raised in the revision before the Settlement Commissioner, but as this point is not mentioned in the order of the Settlement Commissioner, it will be presumed that the petitioner had abandoned this point. I am, therefore, of the view that on this account the impugned orders do not suffer from any illegality.

10. Lastly, it was urged by the learned counsel for the petitioner that the record of all the lower Courts who attached to the second revision petition he had filed and, therefore, it should be presumed that the same had been called. This contention also is not well founded. In this connection, the learned Chief Settlement Commissioner has observed as under :‑ There is no order of the Presiding Officer on the, revision petition admitting the petition. In facts, no entry exists on it showing even the date on which this revision petition was received. The petitioner has not been able to produce any document or any material showing that the record of the case "as ever called for before 13‑1‑1962. The revision petition cannot, therefore, be proceeded with and is dismissed. Two points emerge out of this order : firstly, that the second revision petition filed by the petitioner was not admitted, and secondly, that no record of the case was called for before the 13th of January 1962. It is difficult for me to understand how the record of the case was attached to the second revision petition filed by the petitioner, without its being called by the Chief Settlement Commissioner. In my opinion in view of the observations of the Chief Settlement Commissioner it shall have to be held that the record was not summoned before the 13th of January 1962. The learned Chief Settlement Commissioner, therefore, was perfectly justified in dismissing the second revision petition filed by the petitioner.

11. After hearing the learned counsel for the parties, I am satis fied that the learned Settlement Authorities have done substantial justice between the parties. Both the parties are claimant dis placed persons. The property was found to be divisible. The ground floor of the property in dispute has been transferred to the petitioner and the first floor has been transferred to the respondent. In my opinion, the property has been equitably divided. I, therefore, do not consider this as a fit case for interference under Article 98 of the abrogated Constitution. Accordingly, the writ petition is dismissed, with no order as to costs. A. E. Petition dismissed.