2003 PLP 1963 (SCMR)

Ch. Hafeez Ahmad, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioners. Dr. Muhammad Akmal Saleemi, Advocate Supreme Court and M. A. Qureshi, Advocate‑on‑Record (absent) for Respondent No.7. Date of hearing: 9th January, 2003. JAVED IQBAL, J.‑‑‑This petition for leave to appeal is directed against order dated 30‑10‑2000 whereby Civil Miscellaneous Applications Nos. 1, 2, 3, and 4 of 1999 in Writ Petition No. 1575‑R of 1977 were dismissed by the learned Single Judge of Lahore High Court, Lahore, in Chambers.

2. Precisely stated the facts of the case are that the petitioners are owners in Abadi Deh of Village Chaprar and owners of agricultural land in the said village. Ghair Mumkin village Abadi Deh consists of 240 Kanals and 18 Marlas out of which 22 Kanals and 7 Marlas of land was allotted to respondents Nos.3 to 10 with the collusion of Consolidation Authorities which is being used for public purposes. It, however, was cancelled by the Settlement Officer by means of order dated 6‑6‑1974. The respondents Nos.3 to 10 succeeded in getting the said land allotted once again in their favour under Settlement Scheme No.VII dated 13‑6‑1977. The land was got mutated by the respondents in their names with the connivance of local Patwari and Revenue Staff. The illegal entries in Khasra Gardawari were challenged and the learned EAS/Deputy Collector, Sialkot, declared the entries in the names of respondents as illegal. The respondents filed a civil suit for perpetual injunction restraining the petitioners from interfering in the land in question but the same was dismissed. The possession of land is still with the village Abadi Deh and the land is being used for public purposes. The order dated 13‑6‑1977 whereby land in question was allotted in favour of respondents under Settlement Scheme No. VII was assailed by means of Writ Petition No. 1575‑R of 1977 which after admission and grant of status quo resorted by filing the above mentioned civil miscellaneous applications which were also rejected vide order impugned.

3. We have heard Ch. Hafeez Ahmad, learned Advocate Supreme Court on behalf of petitioners and Dr. Muhammad Akmal Saleemi, learned Advocate Supreme Court for respondents.

4. The order impugned has been perused carefully and record examined with the eminent assistance of learned counsel. There is no denying the fact that Civil Miscellaneous Application (886 of 1994) was fixed during vacation when general adjournment had been granted to Ch. Hafeez Ahmad, learned Advocate Supreme Court. There is nothing on record to show that Ch. Ameer Hussain, Advocate, was engaged by the legal heirs of Ch. Lal Din who were brought on record due to demise of Ch. Lal Din. In such view of the matters notice should have been given to legal heirs of Ch. Lal Din for fixation of case which was never given as record is silent in this regard. Dr. Muhammad Akmal Saleemi, learned Advocate Supreme Court on behalf of respondents could not. controvert the said position. It is worth mentioning that the writ petition preferred on behalf of petitioners was admitted on 7‑1‑1978 and fixed for regular hearing on 13‑12‑1985, after lapse of seven years but adjourned without any material progress. It was again fixed after seven years on 1‑11‑1992 and dismissed for non‑prosecution. The petitioners moved for its restoration by Civil Miscellaneous Application No.886 of 1994 alongwith an application (Civil Miscellaneous Application No.887 of 1994) for condonation of delay, notice whereof was ‑given to respondents by maintaining status quo. The Civil Miscellaneous Application No.886 of 1994 alongwith application for condonation of delay were fixed after five years on 21‑7‑1999 but dismissed for non prosecution without issuance of fresh notices to the legal heirs of the petitioners.

5. In view of what has been stated above it can be inferred safely that proper opportunity of hearing was not afforded to petitioners and they were condemned unheard which amounts to miscarriage of justice. The controversy involved valuable rights of the parties which should be decided on merits instead of technicalities specially when the petitioners H have been pursuing their case for the last more than two decades. The impugned order has been passed mainly on the ground that petitioners could not produce plausible justification regarding absence of Ch. Ameer Hussain, Advocate on 21‑7‑1‑999, who was never engaged by the legal heirs were brought on record subsequently. Ch. Hafeez Ahmad, learned Advocate Supreme Court, was granted general adjournment and matter should have not been fixed during vacation without issuance of notice to the legal heirs of the petitioner.

6. In such view of the matter this petition is converted into appeal and accepted. The Civil Miscellaneous Applications Nos. 1, 2, 3 and 4 of 1999 shall be treated as pending before. the learned High Court and decided in accordance with law and merits after issuance of fresh notices and proper opportunity of hearing to all concerned at the earliest as the matter is pending for the last two decades. H.B.T./L‑38/S Order accordingly.