1983 PLP 183 (SCMR)

M. S. H. QURESHI, J.‑‑‑The applicants, through this application, seek review of this Court's judgment dated 22‑12‑1976, whereby the respondent's Civil Petition for Special Leave to Appeal No. 75‑R of 1976 bad, after converting the same into appeal, been allowed and the order of the High Court of Sind & Baluchistan at Karachi dated 24‑2‑1976 set aside and that of the Chief Land Commissioner dated 19‑12‑1968, restored.

2. The said order dated 19‑12‑1968 had been passed by Mr. Abu Nasr, Chief Land Commissioner, West Pakistan, in suo motu review of an earlier order of his predecessor Mr, Ahsan‑ud‑Din dated 19‑11‑1960 made in suo motu revision under Martial Law Regulation No. 64 of 1959. Makhdum‑ul‑Mulk Syed Ghulam Miran Shah (respondent No. 9 before us) had been granted sanction for partition of his agricultural land on the plea that the same had been purchased jointly by him and Syed Shafi Shah, etc. (respondents 1 to 8 before us). But before any entry could be made in the Record‑of‑Rights, Martial Law Regulation No. E4 was promulgated. Makhdum‑ul‑Mulk sought benefit of the sanction for the partition and an order was made in his favour by the Land Commissioner, Khairpur, on 25‑6‑1959, who upheld the transac tion of the partition. Mr. Ahsan‑ud‑Din had, however, by his order dated 19‑11‑1960 reversed this upon the view that there was no joint purchase of the land and that Makhdum‑ul‑Mulk was "the owner of the entire land holding". Several attempts for review of this order having failed, the matter ultimately came up before Mr. Abu Nasr who, by his order dated 19‑12‑1968, set aside the order of Mr. Ahsan‑ud‑Din and restored that of the Land Commissioner, Khairpur, dated 25‑6‑1959.

3. The petitioners challenged the order of Mr. Abu Nasr through Constitutional Petition No. 21 of 1969 before the High . Court of Sind & Baluchistan at Karachi. The writ petition was allowed on 24‑2‑1976 but in the process, Mr. Ahsan‑ud‑Din's order dated 19‑11‑1960 was also quashed for the short reason that while exercising the revisional power, he has not provided an opportunity of hearing to the persons who claim to have obtained land on partition and that this being in breach of the express provi sion of rule 12 (3) of the West Pakistan Land Reforms Rules, 1969 the order passed in revision was a nullity and all other orders founded thereon were of no legal effect in the result of the order, the revision was to be deemed pending for a fresh decision. This brought Syed Shall Shah, etc. (respondents 1 to 8) in Civil Petition for Special Leave to Appeal No. 75‑R of 1976. On 22‑12‑1976, when the petition came up for hearing, none appeared on behalf of the present applicants, although as noted by the Court, a notice had been issued to them on 2‑11‑1976 and taking advantage of their non appearance, counsel appearing for Syed Shafi Shah, etc. drew attention of the Court to the Chief Land Commissioner's order dated 19‑12‑1968 to show that the parties had in fact been heard, whereupon the Court felt that the High Court had had no ground to set aside the order of the Chief Land Commissioner and accordingly set aside the order of the High Court and restored that of the Chief Land Commissioner dated 19‑12‑1968.

4. The error is apparent on the face of the record, for the defect of non‑hearing as observed by the High Court, related to the order dated 19‑11‑1960 passed in the revision and not to the one dated 19‑12‑1968 which had been passed in suo motu review. The existence of the defect had no been disputed before the High Court and in fact it was on the basis of this common ground that the revisional order had been set aside by that Court. The order of this Court dated 22‑12‑1.976, based as it is upon the mistake view that the defect of non‑hearing had related to the later order of the Chief Land Commissioner dated 19‑12‑1968, thus needs to be reviewed.

5. Before parting;, however, we my dispose of an objection to the application on account of delay of some 209 days in filing it. The applicants have already put in an application for condonation of the delay. Their case is that they had riot been aware of the order dated 22‑12‑1976, and that they had come to know of it through their counsel on 13‑6‑1977 when the record was inspected and had, after obtaining certified copy of the same moved the review application on 18‑7‑1977. In support they have also filed two affidavits, one by Basham Khan and the other by Raiz Ali applicants, to the effect that they had received no notice in regard to Civil Petition No. 75‑R of 1976. In this connection, learned counsel for the applicants has drawn our attention to the fact that Syed Shafi Shah, etc. had in their Civil Petition No. 75‑R of 1976 not even mentioned of the pendency of the applicants' C. P. S. L. A.‑No. K‑104 of 1969. This latter petition had been filed by the applicants against the order of the High Court dated 22‑8‑1969, whereby an order for maintenance of status quo in their favour in the said Writ Petition had been vacated, it is to be noted that the applicants had on 20‑12‑1976, that is, two days before the disposal of Civil Petition No. 75‑R of 1976, had moved an application for withdrawal of their Civil Petition e No. K‑104 of 1969. On the basis of the accompanying circumstances as also the conduct of the applicants, it was asserted that they had no know ledge of the institution of the respondents' Civil Petition No. 75‑R of 1975 or of its disposal. Learned counsel for the respondents was not in a position to refute the assertion. We, therefore, condone the delay.

6. In the result, the application is allowed, the order of this Court dated 22‑12‑1976 is set aside and the Civil Petition is restored and may be placed before a Petition Bench. Petition accepted.