P L D 1975 Lahore 942 (PLP)

This judgment will also dispose of Review Applications Nos. 58/72, 59/72 and 60/72, as identical points of law and facts are involved in all the cases.

2. Writ Petitions Nos. 982/R‑69, 771/R‑69, 1029/R‑69 and 435/R‑69 were filed by the writ petitioners against the order dated 14‑3‑1968, passed by the Additional Settlement Commissioner (1) exercising the delegated powers of the Chief Settlement Commissioner whereby he cancelled the allotment of the land in question made in their favour on 26.2‑1968 by the Chairman, Allotment Committee. The order cancelling the allotment was made mainly on the ground that the allotment in favour of the writ petitioners was contrary to the interest of the State as well as public at large. It was also held as a ground for cancelling the allotment, that under paragraph 4 (b) of the Rehabilitation Settlement Scheme no refugee or class of refugees was entitled to claim settlement under the Scheme in any particular district or a part of a district in West Pakistan and the Rehabilitation Commissioner may direct transfer of claim of any refugee or class of refugees from one district .to another. It was further observed in the said order that since the land in question had already been reserved, before it was confirmed in favour of the writ petitioners, for some particular purposes of the State, therefore, the saline was not available. for allotment to them. It is, however, evident from the order of the delegate of the Chief Settlement Commissioner that the point with regard to the nature of the property as to whether the same was agricultural or open site or a built up area, was raised before him but no finding was given in relation thereto. Since the reasons given by the Chief Settlement Com missioner for cancelling the allotment from the name of the writ petitioners were found to be vague and otherwise not warranted by law, therefore, his order passed in this regard was set aside and all the four writ petitioners were disposed of by the same judgment dated 2‑2‑1972. It is evident that the nature of the land by the said judgment was held to be urban agriculture by implication, though it was not declared to be so in clear terms. The applicant Nawabzada Rashid Ali Khan, son of Nawab Irshad Ali Khan, who claims to be adversely affected by the said judgment, has filed four review applica tions for the purpose of reviewing the judgments in the said writ petitions. He submits that Khasra No. 1027 which has been allotted to the writ petitioners has never been urban agricultural land, and actually comprises bungalow No. S E‑27‑R‑5, Egerton Road, Lahore which has been perma nently transferred in favour of the applicant vide Annexure `R‑1' issued on 31‑8‑1971. According to the applicant the land covered by the said khasra number has never been treated as urban agricultural and since long before the independence of the country has been part of the said bungalow. According to him the said land is actually covered by the kitchen, godown etc. of the bungalow. In support of this contention he has filed copy of the site plan prepared from the Musavi, marked Annex. R‑6.

3. The learned counsel for the writ petitioners has seriously objected to the maintainability of the review applications as well as the locus standi of the applicant to file the same. It is contended that since the applicant has not been a party to the proceedings is the writ petitions, therefore, he is not competent to file the review applications against the judgments delivered therein. It is further contended that the review applications even otherwise are not maintainable under the relevant provision of Order XLVII, rule 1, C. P. C., as there is no mistake or error apparent on the face of the record and no sufficient reason has been shown whereby the judgments in question can be reviewed.

4. As far the maintainability of the review applications is concerned, it has been held in Hussain Baksh v. Settlement Commissioner, Rawalpindi PLD1970SC1 that High Court has power to review an order made by it in exercise of its powers under Article 98 of the 1962 Constitution. It has been held that apart from the High Court's powers to correct errors apparent on the face of record, in exercise of its inherent jurisdiction, the High Court has also power under the Code of Civil Procedure to review its order made in writ jurisdic tion in a civil matter. According to the said authority of the Supreme Court a proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil juris diction and section 114 of the C. P. C. conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its original jurisdiction will be available to it under section 114 of the C. P. C.

5. Before proceeding with the question as to whether there is sufficient cause under the law for reviewing the judgments in question, I would like first to deal with the second objection with regard to the locus standi of the applicant in making the review applications. It has been vehemently contended that since the applicant was not party to the proceedings in the writ petitions, therefore, he is not competent to submit the present review applications. It can, however, not be denied in the circumstances as discussed above, that the applicant feels aggrieved against the judgments in question as his interest in the property has been adversely affected by the order passed in his absence. Where a person is not a party to the original proceedings in the suit and if he files appeal against the judgment passed therein, the test to be applied according to law in granting leave to appeal in such a case would be whether in the circumstances he could be a party to the suit proceedings or not. If he could be impleaded as a party in the said proceedings, then leave to appeal should be granted to such a person. It has been contended that since it has not been provided in the relevant provision of law, whereby a stranger can be allowed to file a review applica tion against an order, judgment or decree, as the case may be, therefore, the said provision of law should not be construed so as to confer right on a stranger to file review application against the said order. It has been held in H. M. Saya & Co. v. Wazir Ali Industries Limited PLD 1969 S C 65 that the Court ought net to act on the principle that every procedure has to be taken as prohibited, unless it is expressly provided, for to give such a meaning to the omission would result in grave injustice. It has been held that the Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the C. P. C. deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. It has been further held that the Code, however, lays down that it is the decree or the order that has to be appealed against and if the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings. The facts of the case as referred to above, decided by their Lordships of the Supreme Court, are that a suit was filed by Saya & Co. against Habib Bank Ltd. for declaration in which Wazir Ali Industries Ltd., respondent before the Supreme Court, were not impleaded as party. Alongwith the suit an application for grant of ad interim injunction was also filed which was granted. Thereafter Wazir Ali Industries Ltd. made an application to the trial Court to be impleaded as necessary party to the suit. Before the application could be decided they filed appeal against the order of injunction in the Court of the District Judge, Karachi. The learned Additional District Judge, who heard the matter, permitted Wazir Ali Industries Ltd. to file appeal as they were aggrieved by the order. The appeal was admitted and the operation of the order granting ad interim injunction was stayed. Revision was filed against this order before the High Court on the ground that since Wazir Ali Industries Ltd. were not party to the suit, therefore, bad no locus standi to file appeal against the order passed in the proceedings of the suit. This contention did not find favour with the High Court and the revision was consequently dismissed. The matter ultimately came up before the Supreme Court and the order of the Additional District Judge as well as of the High Court was maintained on the ground that since Wazir Ali Industries was aggrieved against the order passed by the trial Court, therefore, it was competent to file appeal against the same, irrespective of the fact whether it was party in the suit filed by the appellant before the Supreme Court or not. This authority was followed in Mr. Manzoor Qadir v. Mst. Amtul Hussain and 2 others P L D 1971 Lah. 537 by a Division Bench of this Court. The facts of that case are that Mr. Manzoor Qadir filed Letters Patent Appeal No. 1'.169 of 1966 against the judgment of a learned Single Judge of this Court, dated 7‑1‑1966, passed in Writ Petition No. 585 of 1963 by which respondent No. 1, Mst. Amtul Hussain, was declared entitled to the transfer of evacuee property No. S. 51/R‑52 (41‑Lawrence Road, Lahore). Mr. Manzoor Qadir otherwise being a local was not made a party to the writ petition. Mst. Amtul Hussain was initially transferred evacuee property at Nisbat Road, Lahore, but the same was later on declared to be non‑evacuee and it was decided by the Central Government that she might be transferred a suitable house in the compensation pool in lieu of the property situated at Nisbat Road. The property in question (41‑Lawrence Road, Lahore) was later on proposed to be transferred to her. It is admitted that the said bungalow was provisionally placed in Category 'A' to be disposed of by the Head Office of the Settlement Organization. The Settlement Commissioner also observed in this regard that the bungalow being situated in Civil Lines for which there was persistent demand by certain interested parties, including Mr. Manzoor Qadir, for disposing of the same by unrestricted open auction. He suggested to the Chief Settlement Commissioner to select some other suitable property for Mst. Amtul Hussain. This advice was accepted by the Chief Settlement Commissioner and Memo. dated 30‑11‑1962 was issued to Mst. Amtul Hussain advising her to select a house. The respondent at this challenged that order through the writ petition, as referred to above, characterizing the said memo. as ultra vires, illegal and malicious and prayed for a direction to the Chief Settlement Commissioner to transfer her the property in question involved in the writ petition. The writ petition was accepted by the learned Single Judge of this Court and the direction as sought was issued.

6. During the proceedings iii the Letters Patent Appeal locus standi of Mr. Manzoor Qadir as to file appeal against the judgment passed in the writ petition was questioned on the ground that he was not party in the same‑and whether there was sufficient ground for condoning the delay of more than 8 months in filing the appeal. Necessary material was placed on the file of the L. P. A. in order to show that since Mr. Manzoor Qadir was interested in the transfer of the bungalow by way of auction, therefore, he had interest in the property. It was proved on record that he had shown his interest in this regard t& the Settlement authorities concerned and the Settlement authorities had also supported the view of Mr. Manzoor Qadir. It was held that since the order of the disposal of the bungalow, probably, was made on the persistent request of Mr. Manzoor Qadir, therefore, he might properly have been a party in the proceedings of the writ petition because they were directed against the order which was made at his request.

7. It is established law that a stranger to the case has no right otherwise to file appeal against the order passed in the suit or original proceedings, as the case may be, but he can do so provided he obtains leave from the Court of appeal on the ground that he might have been a party to the suit being interested in the matter. In the circumstances as explained above it was found that it was a fit case for granting leave to Mr. Manzoor Qadir to file Letters Patent Appeal.

8. The case reported in P L D 1969 S C 65 was initially decided by the High Court of West Pakistan in exercise of its revisional jurisdiction as H. M. Saya & Co. v. Wazir Ali Industries Ltd. P L D 1965 Kar.

603. The judgment as passed in this case was upheld by the Supreme Court. It was held by Mr. Justice Qadeeruddin Ahmad, Ex‑Chief Justice, West Pakistan High Court after discussing the relevant case‑law and particularly the provision as contained in section 100 that a stranger to a proceeding, whose interest is ‑not adversely affected by the judgment given in it cannot be allowed to appeal against it, because it would be a superfluous exercise, but the person or a legal represen tative of a party to a proceeding, or the benamidar of the ostensible owner, who is a party, or the principal of an agent who is party, or a person whose name has been screened from the view of the parties to deprive him of his right is in reality not a stranger to the proceedings. According to the judgment he may sometime, be as good as a party, and nobody who is adversely affected by such a judgment or order can be left high and dry without a remedy merely because his name did not figure in the list of the parties arrayed in the proceedings. While relying on (1938) 1 Q B 12, the learned Judge observed that if a person alleging himself to be aggrieved by a 'judgment or order can make out a prima facie case, why he should not have leave to appeal against it.

9. The learned counsel for the writ petitioners has relied amongst other authorities, upon Alkissan Transport Co. Ltd. v. R. T. A., Lahore P L D 1961 Lah. 723 whereby it has been held that since the relevant provisions in the C. P. C. do not confer any right upon a stranger to file appeal, therefore, he has no right to do so. This case has not been relied upon in the judgment as reported in. 1965 Karachi, while the Supreme Court of Pakistan in its authority as reported in P L D 1969 S C 65, cited above, has not approved the said judgment. It was held in India General Navigation & Railway Company Ltd. v. Noor Muhammad and others P L D 1960 Dacca 66 that a party affected by the judgment of first appellate Court, though not made party to the appeal, was entitled to the leave of the Court to prefer further appeal from the decision of the lower appellate Court. In that case the party who preferred the second appeal was a party to the suit before the civil Court, but was not impleaded as party in the first appeal before the learned first appellate Court. On having come to know that decision had been made in the appeal against its interest further appeal was filed by it. It was held that though it was not a party to the first appeal, but since its interest in the property had been adversely affected, therefore, it was competent to file further appeal against the judgment passed in the first appeal. The view as discussed above was considered in many of the cases before the independence of the country and even after the independence in some of the reported cases on Indian side. Some of such cases are mentioned below: Indian Bank Ltd. v. Bansi Ram A I R 1934 Mad. 360, Krishna v. Mohesl 9 C W N 584, Rustamji v. Official Liquidator & Amritsar Bank Ltd. A I R 1919 P R 79, P. Ammal v. State of Madras A I R 1953 Mad. 485, The Bombay Province v. Western Indian Automobile Association A I R 1949 Bom. 141, Executive Officer v. Raghavan Pillai A I R 1961 Ker. 114, D. Pullayya v. A.‑ Nugabbushanam A I R 1962 A P 140 and Shivaraya v. Siddamma A I R 1963 Mys. 127.

10. It was held in 1949 Bombay, as referred to above, that a person not otherwise a party to the suit can file appeal against the judgment and decree passed therein if it adversely affects its interest with the leave of the Court of appeal. It was held that C. P. C. does not in terms lay down as to who can be a party in the appeal, but it is clear and this fact arises from the very basis of the appeal that only a party against whom a decision is given is allowed to prefer an appeal. It was further observed that it was recognized that a person who was not a party to the suit might prefer an appeal if he was affected by the order of the trial Court provided he obtained leave from the Court of appeal.

11. The above discussion raises a question as to why a person, who is not a party to the suit or the proceedings, as the case may be, cannot file review application against the judgment or order if he feels aggrieved against it on account of his interest having been adversely affected by that. Filing of appeal and review is a substantive right. It has been held clearly in the authorities referred to above that a person, though not a party to the suit or the original proceedings, can be granted leave by the appellate Court to file appeal provided he shows that his interest in the property has been adversely affected. On the same analogy a person who is not a party in the suit or proceedings can file review application against the judgment or order adversely affecting his interest.

12. Even otherwise by a careful scrutiny of the provisions as contained in Order XLVII, rule 1, C. P. C. I am of the view that in sub‑rule (1) the words, "any person" do not relate to a party in the suit or the proceedings, t it rather on the contrary lays down that any person, irrespective of the fact whether he has been a party in the suit or proceedings can file review appli cation if he feels aggrieved by a decree or an order, who from the discovery of new and important matter or evidence, which after the exercise of due diligence was not within his knowledge, or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree passed or order made against him. The words "a party" as used in sub‑rule (2) of Order XLVII pertain to a person who is already a party in a suit or proceedings and if he does net want to file appeal against the judgment or order made against him then he can file an application of review against the same. The Legislature has purposely used in sub‑rule (1) the words "any person" in order to confer right on a party, which was not impleaded as such in the suit or proceedings, to file review application against the decree or order passed against it. The provisions as contained in sub‑rules (1) and (2) of the Order relate to different persons and parties. In this view of the matter the applicant is entitled to file the present review applications.

13. According to law review can be sought not only on account of discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of aggrieved party but also if the said matter or evidence could not be produced by the said party at the time when the decree was passed or order was made. In the present case, the applicant, Nawabzada Rashid Ali Khan, was not a party to the writ petitions and as such, it was not possible for him to produce any evidence at that time to show that the land in question was not agricultural in nature but a built‑up area of a portion of the property transferred to him. He has in this regard filed copy of the P. T. D. Annex. R‑1; issued to him in regard to 3/4th portion of the bungalow bearing No. 5E‑27‑R‑5, Egerton Road, Lahore, with corresponding Khasra Nos. 5176, 1027 and 1026 and copies of Khasra Amarti for the years 1941‑42, 1945‑46, 1957‑58 and 1962‑63 showing Khasra No. 1027, as bungalow, situated at Egerton Road, Lahore. The said record was neither put up before the Settlement Commissioner, who cancelled the allotment of the land made in favour of the writ petitioners by his order dated 14‑3‑1968, nor it was put before this Court at the time of the hearing of the writ petitions. If the applicant had been a party to the writ petitions then he would have produced all the relevant record to prove his contention. As such, it cannot be attributed to lack of due diligence on .his part in not submitting the relevant record before this Court. Similar circumstance, existed in L. P. A. No. 444 of 1966, in which Review Appli cation No. 6 of 1969 was filed (Bashir etc. v. Sardar Muhammad Khan Alvi etc.) decided by a Division Bench of this Court on 20th of November 1969. The allotment of land in the name of the applicant, before the High Court was cancelled on account of fraud and misrepresentation alleged to have been committed in obtaining the same. This order was upheld even in L. P. A. decided by the High Court. Later on the applicants got hold of certain documents showing that no fraud or misrepresentation had been committed by them in obtaining the allotment. The said documents were entertained by the High Court in the review application on the ground that their non production at the relevant time was not attributable to their lack of due diligence. The review application was accepted and consequently, the relief claimed in the L. P. A. was granted. This judgment of the High Court was challenged in Civil Petition for Special Leave to Appeal No. 53 of 1970, before the Supreme Court but the same was dismissed on 8th of April, 1970.

14. The above discussion would show that there is sufficient material on record to review the judgments in question. I am, however, not in a position to make any observation in regard to the nature of the land. Prima facie, so far as the documents produced by the applicant are concerned, it appears to be non‑agricultural and built up area. As such the observation made by me in my impugned judgments to the effect that the land in question had not been declared as building site by any competent authority under the law has no significance. According to law, nature of the land has to he determined in accordance with its use to which it was put in 1946‑47, at the time of independence of the country. It will be for the Settlement authorities concerned to decide, after hearing the parties, as to what is its nature. Since the applicant is transferee of the bungalow which comprises the khasra number in question, therefore, his presence before the authority concerned while deciding the question involved is necessary.

15. The impugned judgments were announced on 2‑2‑1972 while the review applications in all the four writ petitions have been filed on 6‑11‑1972. It is in the affidavit of the applicant filed alongwith his applications under section 5 of the Limitation Act that he came to know about the judgments under review on 30‑9‑1972, when he applied for the supply of certified copies thereof, which were made available to him on 4‑10‑1972. According .to him, he spent a month thereafter in inspecting the relevant records, getting necessary certified copies thereof and preparing the case. The circumstances as explained in the application warrant condonation of the delay in filing the review applications. Even otherwise, according to law an application barred by limitation can be treated as one under section 151, C. P. C. if the Court is satisfied that there has been a flagrant abuse of its own process and removal of an apparent injustice done to the applicant is necessary. Reference in this respect can be made to Kawdu v. Berar Ginning Company Ltd. A I R 1929 Nag.

185. In that case the order was obtained in the absence of a person, named Narayan, whose presence was otherwise necessary for the adjudication of the question involved. When Narayan came to know about the order he made an application for review of the same. His application being time‑barred was held ,to be otherwise liable to be treated as an application under section 151, C. P. C. for removing the apparent injustice done to him on account of his non‑impleading as party in the case. In the present case the circumstances narrated above would show that the presence of the applicant Nawabzada Rashid Ali Khan was necessary before this Court and he was liable to be impleaded as party in all the four writ petitions being transferee of the land in question. Since the impugned judgments were passed in his absence without affording him an opportunity of being heard adversely affecting his interest in the property, therefore, even if it is found that his review applications are barred by time the same can be treated as applications under section 151, C. P. C. and the injustice done to him can be rectified by exercise of inherent jurisdiction of this Court.

16. In view of the above discussion all the four review applications are hereby accepted, without any order as to costs, and the impugned judg ments passed in the four writ petitions, as referred to above, are hereby modified to the extent that the case is remanded to the Chief Settlement Commissioner to be entrusted to the competent Settlement authority for deciding the nature of the property after hearing the parties. k. B. A. Petitions accepted.