P L D 1976 Karachi 1197 (PLP)

At the start of settlement operations each of them applied for the transfer of the house. Imdad Ali's LH form was rejected on 18-I1-1963, while those of Shamsul Haque and Rafique were rejected earlier on 5th November, 1963. The ground for rejection was that the valuation of the house was more than Rs. 10,000 as its general annual rental value was Rs.

540. No effort was made by any of them to challenge such rejection. Ultimately, the house was brought on earmarking list and objections were invited from all those who could claim its transfer otherwise. Last date for such objections was fixed as 7-12-1959. None of the respondents cared to file objections. Ultimately, the lots were drawn and petitioner No. 1 was transferred the house on 9-12-1959. Appendix dated 21-1-1960 and P. T. O. dated 6-2-60 was issued in her favour. Before the issuance of P. T. O. she had paid the entire price of the house, by associating with petitioner No. 2, who is her brother. On 13th July, 1960 Imdad Ali preferred an appeal before the Additional Settlement Commissioner. But it seems, before that he had preferred an appeal before the Deputy Settlement Commissioner, against the rejection of LH form which appeal was dismissed as hopelessly time-barred. In his appeal before the Addl. Settlement Commissioner Imdad Ali claimed that the house was divisible horizontally, and that as such its value would come to less than Rs. 10,000 which would entitle him to be transferred as local. This appeal was rejected initially on the ground that it was time-barred, and on merits that the house was not divisible. This order was passed on 18th August 1960. A review application was moved against this order. But as a revision bad also been preferred before the Settlement Commissioner on 30th June, 1961 therefore, the review application was rejected by the Addl. Settlement Commissioner on 31-3-1962. The revision application was twice dismissed in default, but ultimately it was heard on 2-f-1963, and decided on 16th October, 1963. The Settlement Commissioner also visited the site and found that the property was divisible horizontally and ordered accordingly. He further directed that the upper portion should be transferred to Imdad Ali and the petitioner No. 1 should remain transferee of the ground-floor. During all this period Shamsul Haq and Rafiq Memon kept silent. On 24th of March. 1965, both of them came forward with appeals before the Deputy Settlement Commissioner, Hyderabad. They gave the history of rejection of the LH form and basing their claim on the final orders of Settlement Commissioner dated 16th October, 1963, they claimed that principle of divisibility having been accepted for the first time on the date of order of Settlement Commissioner, it gave them a fresh cause of action. But because they came to know of such orders only on 15-4-1965, therefore, the appeal was preferred with such delay. In the alternate an application for condonation of delay was also moved. The learned Dy. Settlement Commis sioner accepted the contentions raised by both of them, accepted their statement of delayed knowledge of the order of Settlement Commissioner, and found it for a fact that the ground-floor of the premises in dispute was also divisible and accordingly ordered the transfer of the same to both of them by his order dated 29th June, 1965. Present petition challenges this order as well as that of the Settlement Commissioner dated 16th October, 1963. The first contention of the learned counsel for the petitioner is that the Settlement Commissioner while deciding the revision petition filed by Imdad Ali had not taken into account the fact that the orders impugned before him were based on the ground that the appellant's appeals before the Dy. Settlement Commissioner and the Addl. Settlement Commissioner were hopelessly time-barred. Additionally, it is contended that even the revision before the Settlement Commissioner was time-barred. In support of the first contention reliance has been placed upon Ataullah Malik v. Custodian, Evacuee Property (P L D 1964 S C 236), Azmat Ali v. Chief Settlement Commissioner (P L D 1964 S C 260). In Ataullah's case an application for confirmation of the transfer, which was time-barred, was unaccompanied by a prayer for condonation of delay under section 5 of the Limitation Act. The contention that the Custodian should be deemed to have impliedly condoned the delay when he confirmed such transfer we repelled. It was held that under section 5 of the Limitation Act there is to be a finding of sufficient cause and then their Lordships proceeded to lay down the definition of sufficient cause. Thus this authority, in the main, holds that implied condonation of delay is not to be presumed in case an order is passed on merits without expressly considering the question of limitation. Such an order should clearly indicate that the authority passing the order was fully conscious of the question of limitation, and applied its mind to the reasons of such delay and found for a fact that sufficient cause existed for bringing the appeal or revision beyond time. Even in that case the person seeking indulgence of condonation of delay has. to account for each day lost by him. But this authority would not be attracted in the instant case because the orders impugned before the Settlement Commissioner had considered the question of delay and had refused to condone it. These orders were challenged before the Settlement Commissioner and the conten tion on behalf of the petitioner is that this revision application itself was time-barred. Though not relied upon but it seems that the limitation of 15 days as laid down by the -Chief Settlement Commissioner in his circular letter dated 7th September, 1960 was in the mind of the learned counsel for the petitioner. But this circular was held illegal by the supreme Court in Abdul Majid Sheda's case (PLD1967SC221) where it was held that the 'power of superin tendence, given to the Chief Settlement Commissioner, over his subordinates cannot be invoked as authority for the prescription of a period of limitation for revision petitions, in the absence of any provision in the Act or any Rule to that effect.' The Settlement Commissioner could, therefore in law entertain a revision petition at any stage. But the fact remains that while entertaining that petition it was his bounden duty to consider the question of limitation on which the authorities subordinate to him had dismissed the appeals of Imdad Ali. Not having done so the law laid down in Azmatali's case would be fully attracted to the case. The relevant observations of their Lordships of the Supreme Court are to the following effect :- "A further question that arose for consideration was as to whether Khan Farzand Ali Khan himself had acted in the proper exercise of his jurisdiction in dealing with the revision on merits "without considering as to whether the order dismissing the appeal on the ground that it was barred by limitation was proper or not. There was nothing in the order of Khan Farzand Ali Khan to show that he was even conscious that any question of limitation arose. In the circumstances, we are unable to appreciate how the High Court thought it fit to restore the order of the Settlement Commissioner which itself was liable to be quashed in the writ jurisdiction." In the same authority it is held that in case where an order of a tribunal of quasi judicial nature is interfered with the superior courts while having full powers of doing justice do not normally substitute their own decision for that of the decision of the inferior authority or tribunal. This principle of law is correct so far as the question of arriving at a finding of fact is concerned. Because the same authority further goes on to lay down that in case where a question has to be decided after taking fresh evidence it would be more appropriate to return the case to the authority for decision. In the present case the question of limitation is quite clear. Even the respondent has contended that the appeals filed before the Dy. Settlement Commissioner and the Addl. Settlement Commissioner were barred by limitation. It is also not contended that any application for condonation of delay was moved at A all. In the absence of such an application the question of condonation of delay would not arise because, section 29(2) of the Limitation Act, 1908 provides that 'where any special or local authority prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply as if such period were prescribed therefor in that a schedule' Displaced Persons (Compensation and Rehabilitation) Act, 1958 is undoubtedly a special law. It is, therefore, clear that where an application under section 5 is not moved for the condonation of delay the provisions of section 3 would automatically come into play and, therefore, on this score orders of the Addl. Settlement Commissioner and Deputy Settlement Commissioner are unexceptionable. The order of the learned Settlement Commissioner suffers on another count as well. A local is not entitled to the transfer of a house in his. possession if the valuation thereof exceeds Rs. 10,

000. The learned Settlement Commissioner without deciding the question whether the valuation of the first floor would be less than Rs. 10,000 transferred the same to Imdad Ali, while coming to the finding of divisibility of the premises the learned Settlement Commissioner in his order dated 7-8-1963 came to the following conclusion : "The first floor tenement has its independent entrance and can easily be separated horizontally, as claimed by the applicant. There is no justification to deprive the applicant occupant of his right to transfer so long the evaluation price of the 1st floor does not exceed Rs. 10,000." But he did not determine if the evaluation price of the first floor did not exceed Rs. 10,

000. On the other hand he left the matter to the Dy. Settlement Commissioner when he directed him "Deputy Settlement Commissioner concerned will issue transfer docu ments after ensuring that that assessment on the basis of which evaluation price should be determined is equitably divided between the ground floor and the first floor." It is not shown if till today any evaluation price of the ground floor or the first floor has been arrived at. But earlier on 17th August 1960 the then Deputy Settlement Commissioner had, in his report, stated that apportion ment of the G A R of 1946 with, respect to the first floor would be Rs. 280. per month. That would have made the evaluation price of the first floor as Rs. 11,200 which would have otherwise not entitled Imdad Ali for the transfer of the first floor. The next contention raised by the learned counsel for the respondent. is that the appeals entertained by the Dy. Settlement Commissioner filed by Shamsul Haq Memon and Rafique Memon were also beyond time. Their L. H. forms had been admittedly rejected as far back as 18th November, 1959. They preferred appeals in March, 1965. The ground that the acceptance of principle of divisibility by the Settlement Commissioner by his order dated 16th October, 1963, gave him fresh cause of action is not sustainable. In actual fact, the cause of action for both of them arose when their LH form was rejected. They had to challenge the same within time, or having challenged beyond time they were to show sufficient cause for such delayed action. A subsequent decision as to the principle of divisibility of the house would not provide a fresh cause of action, because it was always open to them to raise the question of divisibility at appropriate stages and before the proper authorities. Not having done so they cannot now make the fresh point from which they could count time for putting up a fresh case. If the contention that every fresh change of law provides a fresh cause of action is accepted there would be no end to litigation. They were aggrieved by an order of rejection of their LH form and that was passed in November, 1959. Not having challenged the same within the limitation provided their appeals were patently time-barred. The next contention raised by the learned counsel for the petitioner is that the Deputy Settlement Commissioner while dividing the ground-floor was in fact revising the order of the Settlement Commissioner who had not found the ground-floor as divisible. The learned counsel for the respondent contends that at the time the learned Settlement Commissioner found that the premises in dispute could be divided horizontally he was siezed of only the appeal filed by Imdad Ali and, therefore, it would be presumed that he considered only the question of horizontal divisibility of the premises. This contention, if accepted, would mean that even the question of divisibility of a house into two or more portions would not attain finality. Once the Settlement Commissioner applies his mind to the question of divisibility of a house and declares that the building is divisible horizontally it cannot be contended - that he had not applied his mind to the capability of further devisibility of the same building. The Dy. Settlement Commissioner, was therefore, trying to revise the order of the Settlement Commissioner when he proceeded to hold that the ground-floor was further divisible into two units. The learned counsel for the respondent has, raised a technical question inasmuch as that the respondent No. 3(b) Mr. Mazharul Haq Siddiqui was not shown as one of the legal heirs of lmdad Ali deceased when after the demise of the said respondent an application to bring his legal representatives on record was moved on 1-5-1971. A subsequent application bearing No. 420/72 was moved on 22-5-1972, when the earlier application had already been granted on 8-5-1972 for bringing the other legal representatives of Imdad Ali on record and they had been ordered to be brought on record. No Orders seem to have been passed on this application and the learned counsel for the respondent says that it requires disposal, before the final order in this petition is passed. He opposed the application on the ground that as the application was filed beyond time, therefore, the whole petition should be declared to have abated and dismissed as such. He relies on the case of Mukha v. Rifat Pasha (1972 S C M R 514) and Punjab Province v. Sultan Khan (P L D 1959 Lah. 500). Both these authorities lay down the law that if the legal representatives of a deceased respondent are not brought on record in time the writ petition or appeal as the case may be, abates. But in the present case the application for bringing the LRs on record had been moved and was granted after sufficient cause was shown for the delay in moving such application. The question, however, remains if the omission to mention one of the legal representatives of the deceased respondent would also attract the principles of law laid down in this authority. In case where every other legal representative of the deceased party are duly brought on record and one is left out, not deliberately but through oversight, the eventuality of abatement of proceeding does not follow. This is the view taken in Dinar Trading Co. v. Allahbux (P L D 1965 Kar. 36). It was held that a party having on record the legal representatives of the adversary dying pendente lite cannot be penalised for not bringing on record all the representatives of the deceased. Same view was expressed in Mst. Umrao Begum v. Rehmat Ilahi (A I R 1939 Lah. 439). In this case only one of the legal representatives of the deceased party had been brought on record and it was held that that would prevent the appeal from abating. In the case of Begum Jan v. Jannat Bibi (A I R 1927 Lah. 6) it was held that legal representative as required by Order XXII, rule 4, C. P. C. does not mean all the legal representatives. It was further held that if the applicant makes bona fide application to bring on record all the legal representatives known to him so far as he can ascertain sufficient compliance of law is made. In Jehrabi v. Bismilla Bi (A I R 1924 Bom. 420) it was held that if one of the several representatives of the deceased defendant was brought on record this is sufficient compliance of Order XXII, rule 4, C. P. C. because, in the opinion of Macleod, C. J., that one legal representative will be enough to represent the estate of the deceased for the purpose of the suit. In the present case also 10 out of 11 legal representatives of deceased Imdad Ali bad been duly brought on record and they were enough to look after the interest of the estate so far as the proceedings in this petition were concerned. In any case the omission was detected and an application moved promptly. I would, therefore, hold that delayed application for bringing Mr. Mazharul Haq Siddiqi on record does not operate to abate the proceedings. For the foregoing reasons I would accept the petition and set aside the orders of the Settlement Commissioner dated 7th August, 1963 and of the Deputy Settlement Commissioner, dated 29-6-1965. The result is that the orders transferring the premises in dispute through earmarking would stand. The petitioner would be entitled to the costs of this petition S. Q. Petition accepted.