1974 PLP 477 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for the review of E judgment of this Court delivered on the 14th September 1972, in Civil Appeal No. K‑23 of 1970 (Muhammad Ismail v. The Chief Settlement Commissioner and others). Learned counsel appearing in support of this petition has urged only two points. The first is that this Court, in arriving at the conclusion that the order passed by a Rent Controller under the Karachi Rent Restriction Act, 1947, could not be deemed to be an allotment under subsection (1) of section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957, had overlooked the provisions of subsection (2) of the said section. This subsection reads as follows :‑ "Every allotment of evacuee property made between the first day of March 1947, and the commencement of this Act, shall be deemed to have been made under subsection (1)." This point was specifically considered in the judgment of this Court, and it was, after quoting the whole of section 18, said :‑ "This argument would, no doubt, have been tenable if, as contended by the learned counsel for the appellant, it could have been shown that the allotment, under whatever law made between the first of March 1947, and the 15th of March 1957, was made for the purposes of rehabilitation of displaced persons or for their social and economic rehabilitation in Pakistan." The order of the Rent Controller, on which reliance as placed in the present case, was made at a time when the Evacuee Laws had not been extended to Karachi and, therefore, the order could not, within the meaning of subsection (2) of section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957, be an allotment of "evacuee property". Furthermore the contention of the learned Advocate that the omission of the words "may for the purposes aforesaid" occurring in subsection (2) of section 14 of the Pakistan (Administration of Evacuee Property) Ordi nance, 1949, from the provisions of subsection (2) of section 18 of the Act of 1957 also made a radical difference, is without any substance. As already indicated under section 18, subsection (2) of the Act of 1957, the allotment had to be of "evacuee property" and not of any property. In the present case, the order of the Rent Controller was made at a time when the Evacuee Laws were not extended to Karachi for directing the letting of the premises to Mr. Merchant in exchange for accommodation given up by him in Bombay to the owner of the premises in dispute. The order could not, therefore, be an order for allotment in respect of any "evacuee property". The next contention of the learned counsel is that this Court's finding that the petitioner Mrs. Hazarabai Merchant was not in her own right entitled to take advantage of the extended definition of "possession" under Notification No. F. 1(27)/59‑SI dated the 13th October 1959, was an error apparent on the face of the record. We are unable to agree, because, until the coming into force of the notification of the 7th of March 1960, a wife bad no independent right, if she was only living in an evacuee premises with her husband. Such occupation of the wife was occupation as a licensee of the husband and not in any independent right. The possession given under the order of the Rent Controller was given to her husband, Mr. Merchant, and not to her. Therefore, she could not take advantage of his possession under such an order of the Rent Controller to claim to be in continuous unauthorised occupation under the Notification of the 13th of October 1959. In any event, she could not take advantage of this notification, because, this notification comes to the assistance of a person in unauthorised occupation, only if no other person was otherwise entitled to a preferential right c to the transfer of such house or shop. In the present case, it has to be remembered that the respondent, Muhammad Ismail, being a direct claimant in possession under an allotment order, was entitled to the transfer of the property in preference to an indirect claimant. We see no substance , therefore, in either of the points urged in support of this review petition which is accordingly dismissed with costs to the caveators. Petition dismissed.