1968 PLP 1376 (SCMR)

(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 5th October 1967, in Letters Patent Appeal No. 191 of 1967).

Art. 58 (3)‑Petition for Special Leave to Appeal‑Question not agitated before lower tribunal‑Cannot be permitted to be agitated for first time in Petition for Special Leave to Appeal.

Art. 98‑High Court in writ jurisdiction setting aside order of tribunal below‑Cannot substitute its own decision for that of tribunal where questions have been left undecided and where fresh evidence required to be taken . In case of misreading of evidence by lower tribunal, remand of case, however, to lower tribunal not necessary. Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner and another P L D 1964 S C 260 distinguished. JUDGMENT FAZLE‑AKBAR, J. The dispute in this case is with respect to western portion of a residential house bearing No. 524, Doonger Mohallah, Lahore Cantonment. Two rooms in the said portion were in occupation of the petitioner, S. Muhammad Hayat, and the other portion was in occupation of respondent No. 1, Shakoor Ullah Khan, and his wife. The Assistant Settlement Commissioner being of the opinion that Shakoor Ullah Khan, a claimant displaced person, was in prior possession of the property in dispute under a valid allotment order, transferred the entire western portion to him, and his order was upheld by the Deputy Settlement Commissioner. The Additional Settlement Commissioner took the view that the allotment orders and other papers, on which Shakoor Ullah Khan relied, were of doubtful nature and he, therefore, set aside the order of the Deputy Settlement Commissioner and transferred the disputed portion to Muhammad Hayat. Shakoor Ullah Khan then moved a writ in the High Court, challenging the order of the Additional Settlement Commissioner. A learned Single Judge of the High Court, who heard the petition, found that the Additional Settle ment Commissioner had reached his conclusion without considering the material evidence in the case. He, therefore, set aside his order and restored that of the Deputy Settlement Commissioner transferring the house to Shakoor Ullah Khan, and his judgment and order were also upheld in appeal by the Letters Patent Bench. Muhammad Hayat now seeks special leave to appeal to this Court. Mr. Gul Muhammad Khan, the learned counsel for the' petitioner, attempted to argue that his client was in prior posses sion of the disputed portion. As this question was not agitated before the Settlement Authorities, he cannot be permitted to raise this question at this stage. He next contended that if the Additional Settlement Commis sioner had disposed of the case without considering the material evidence on record, the High Court should have remanded the case to him for disposal in accordance with law. No doubt, this contention finds support from the decision of this Court in the case of Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner and another (P L D 1964 S C 264). In that case this Court observed "In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi‑judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal. Where it is felt that questions have been left undecided by such Tribunal or authority or a question has to be decided after the taking of fresh evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against." In the instant case, the Additional Settlement Commissioner did not leave any question undecided nor did he fail to take any evidence into consideration. What 'he really did was that without giving any cogent reasons he ignored the prior allotment in favour of the respondent, Shakoor Ullah Khan. In other words, it was a case of misreading of evidence and hence, in our opinion, the above observations are not fully applicable to this case. The High Court was, therefore, justified in interfering with his order. In these circumstances, we see no good ground for interfer ence and, accordingly, dismiss this petition. Leave refused.