P L D 1978 Lahore 769 (PLP)

The dispute in this case is about house bearing No. W-11-6-S.5. situated Guru Nanak Bazar, Sheesh Mahal Road, Lahore. This case came to this Court earlier also in the form of Writ Petition No. 1762-8 of 1963 titled Nisar Ahmad v. Muhammad Rafiq. Settlement and Rehabilitation Commissioner (Enforcement), Lahore and 2 others. At that time the house had been transferred to Sadiq Ali son of Nemat Ali as an informer. The writ petition was accepted by me by means of my order dated 13-12-1966, whereby I quashed the order impugned therein and remanded the case for fresh decision in accordance with law and also to examine the entitlement, if any, of Nisar Ahmad, the then writ petitioner. Sadiq Ali, the earlier transferee, file an L. P A. being L. P. A. No. 78 of 1967, which was dismissed by a Division Bench of this Court on 2-10-1967 with an observation that Sadiq Ali could also, if he so desired, take part in the remand proceedings. The case has now been decided by the Deputy Settlement Commissioner, who, by means of his order dated 16-2-1976 has transferred the house to Nisar Ahmad. The present writ petition has been filed by Mst. Ijaz Fatima widow of Syed Bashir Hussain Kazmi. As a matter of fact, she tried to assert her claim during the remand proceedings on the basis of some old form dated 18-2-1965 (Annexure'B') tendered along with an application (Annexure'A') dated 17.4-1965, but being of the opinion that she was not an applicant of the house under Settlement Scheme No. I, and also because she or her predecessor-in-interest namely, her husband, was not a party in the litigation in the High Court, therefore, she could not figure in the remand proceedings and her claim for transfer of the property was, as such, rejected. Mst. Ijas Fatima has come up in writ petition against the last mentioned order of the Deputy Settlement Commissioner.

2. Learned counsel for the petitioner has argued that as a result of order of remand, the property stood transferred to nobody and was, from another point of view still, as he termed it, an 'available property' to claim which the petitioner could file an application which should have been taken into consideration on its own merits, both as regards the entitlement of the contestants and the possibility of dividing the property in which the parties had been residing for three decades or so, irrespective of the fact that the petitioner or her husband were not parties in the previous writ petition. The contention seems to have merit. In somewhat similar circumstances in Yousaf Ali v. Fazal Muhammad Malik and 3 others (1970 SCMR 681) where a person who was not a party in the litigation wanted to assert his case for the first time by becoming a party in the writ petition of another in the High Court. it was observed that he could not be allowed to do so. The case went up to the Supreme Court who maintained this view but observed that "It seems however, correct that being not a party before the Settlement Authorities in the dispute which was eventually taken to the High Court. he has no right to be impleaded in those proceedings in the High Court. If the High Court, in the end, decides to send back the case for re-decision to the departmental authorities, the petitioner may possibly be able to contend before those 'authorities that his form should also receive consideration. But until such an event materialises, we do not see how the petitioner can be said to be a party interested in the litigation in the High Court." In the instant case, since the case was sent back, therefore, respectfully following the above dictum I hold that the mere fact that the petitioner was not a party in the earlier litigation in the High Court, the same constituted no bar to her application being considered on its own merits in all respects especially when the result of the order of remand was that the property uptil then stood undisposed of. In Ch. Altaf Hussain etc. v. The Chief Settlement Commissioner, Pakistan, Lahore (PLD1965SC68), it was held that a form though apparently filed late but before any transfer of property toot place could also be taken into consideration. Reference may also be made to Settlement Scheme No. VIII promulgated on 16-11-1965 which provides scope for fresh applications for 'available properties' and which scheme could have been taken note of (for whatever worth it was for all concerned) after the orders of this Court in the earlier writ petition. I hold accordingly.

3. When confronted with this situation, learned counsel for the contesting respondent argued that the husband of the present petitioner was a party in the earlier litigation before the Deputy Settlement Commissioner when his form was rejected on 23-12-1962 ; that he did not file any writ petition in the High Court which meant that he gave up the pursuit of this property and lost all interest therein ; that the present writ petitioner, who stands in the shoes of her husband is barred by the earlier order of rejection of his form that she has no independent right of claiming transfer which, according to law, could be invoked by her only if her husband had not invoked his own right to get this property. but as the husband did invoke his own claim which was rejected by the Deputy Settlement Commissioner etc., therefore, those earlier orders against her husband were a compete bar in her way to now invoke her own right, if any ; that the plea that the petitioner had filed any form was not c3rrect ; that the husband of the petitioner was ejected from this property, though later some civil suit was filed by him in which he obtained a decree in his favour ; that the alleged C. H. form of the petitioner, according to para. 2 of the writ petition was tendered along with an application (Annexure 'A') dated 17-4-1965 seeking permission to file it ; that the C. H. form (Annexure'B') allegedly is dated 18-2-1965, and that it was under Settlement Scheme No. I and not VIII. I have no intention to go into these controversies. because as is evident from my finding in para. 2 above, the case shall have to be remanded to the learned Deputy Settlement Commissioner for fresh derision in accordance with law after taking the form of the writ petitioner, for whatever worth it may be into consideration and after giving opportunity to all concerned to raise such pleas as they may like to raise under the law. I hold and order accordingly.

4. The result is that the present writ petition is accepted ; the impugned transfer is quashed and the case is remanded to the learned Deputy Settlement Commissioner for fresh decision in accordance with law in the light of the observations above made. The parties to bear their own costs. S. A. H.?????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.