1986 PLP 1539 (MLD)

Dates of hearing: 21st January; 4th and 5th February,

986. Through this Constitutional Petition, Major (Rtd) S.A. Qayyum petitioner wants this Court to declare the order, dated 6‑2‑1973 of Deputy Settlement Commissioner (L), Sialkot, respondent No.2 issuing P.T.D. in favour of Ch. Nazir Ahmad, respondent No.3, to be without lawful authority and of no legal effect.

2. The dispute relates to the transfer of land measuring 20 marlas which is a portion of property known as 'Chappar' situated at Sambrayal Road, Kot Daska, Tehsil Daska. The facts leading up to this petition (as stated by the learned counsel for the petitioner), briefly, are that property known as 'Chappar' situated at Sambrayal Road, Daska was allotted to Muhammad Iqbal, Muhammad Khan and Muhammad Azam by Central Government. The petitioner purchased it from them through registered sale‑deed. Mutation of transaction was attested and entries were made in the record of rights. The D.S.C., respondent No.2, however, transferred a portion measuring 20 Marlas of the 'Chappar' to Ch. Nazir Ahmad, respondent No.3 through negotiations on 31‑1‑1973 and P.T.D. was issued vide impugned order, dated 6‑2‑1973. Ch.Nazir Ahmad further alienated the disputed portion to Rana Arshad, respondent No.4 through sale. On coming to know of this transfer, the petitioner made representation before Member Board of Revenue (Settlement and Rehabilitation Wing), but no action was taken. He then filed W.P. No. 1079‑R of 1976 which was dismissed on 24‑5‑1978 for non prosecution. The petitioner moved application for the restoration of writ petition which, too, was dismissed on 5‑7‑1978. The petitioner filed I‑C. A against this order which was also dismissed on 7‑8‑1976 as "not competent". He has, now, filed this second writ petition.

3. Learned counsel for the petitioner mainly submitted that the entire "Chappar" measuring 9 Kanals having already been transferred to Muhammad lqbal and others and purchased from them by the petitioner. was no more available for transfer to Ch. Nazir Ahmad respondent No.3 in the year 1973 and as such, the impugned order was illegal and without lawful authroity. Conversely, the learned counsel for the respondents have not only supported the impugned order but also challenged the maintainability of the second writ petition on the same cause of action. They maintained that since the earlier W.P. No.1079‑R of 1976 filed by the petitioner against the order impugned in the present writ petition had been dismissed in default and application for restoration of the same was dismissed and the I.C.A. filed by the petitioner against the order of dismissal of the application for the restoration of the writ petition, was also dismissed, therefore, the present writ petition on the same cause of action could not have been entertained.

4. I have considered the submissions made by the learned counsel for the parties with care, I would like to discuss the objection raised by the learned counsel for the respondents with regard for the maintainability of the present writ petition first. I find that on 24‑5‑1978 when writ petition No.1079‑R of 1976 of the petitioner was dismissed, neither the petitioner nor the respondents were present in the Court and as such, the petitioner was not precluded from bringing a fresh writ petition on the same cause of action. There can be no two opinion that the principles of Civil Procedure Code are applicable to the proceedings in Constitutional petitions and it is well‑settled that to exercise of the writ jurisdiction, where no specific rules of procedure were laid down, broad rules of C.P.C. have to be followed. The relevant rules of Order IX, C.P.C. may be reproduced conveniently. "Rule 3, C.P.C.‑‑Where neither party appears when the suit is called on o‑r hearing,' the Court may make an order‑ that the suit be dismissed." "Rule 4, C.P.C.‑‑Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh stilt; or lie may apply for an order to set' the dismissal aside, and if he satisfied the Court that there was sufficient cause for his not paying the court‑fee and postal charges (if any) required within the time fixed before the issues of the summons, or for his non‑appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with suit." "Rule 8, C.P.C.‑‑Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." "Rule 9, C.P.C.‑‑Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismiss aside, and if he satisfies the Court that there was sufficient cause for his non‑appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit." From the examination of the provisions of law reproduced above, it is very much obvious that since the respondents were also absent on the date of hearing of the writ petition, therefore, the petitioner was not precluded from filing the present petition as no period of limitation is prescribed for filing a writ petition. The objection of the learned counsel for the respondent is, therefore, over‑ruled. On merits, I have not been able to persuade myself to agree with the learned counsel for the petitioner. I find that the crucial question for determination is as to whether the disputed 20 marlas, were portion of the property known as 'Chappar' or not. Learned counsel for the petitioner asserted that the disputed property was very much part of property known as 'Chappar, which having already been transferred to Muhammad Iqbal and others, the predecessors‑in‑interest of the petitioner, was not available for inclusion in the list of auction or transfer to Ch. Nazir Ahmad, respondent No.3 This assertion of the petitioner has not been admitted try the Settlement Department. In parawise comments, it has been stated that the record does not show that the disputed property forms part of 'Chapparl or not. There is a report dated 26‑9‑1970 Annexure. R/2 to the effect that the 'Chapparl who is included in the auction is a separate one On 26‑9‑1970, the Deputy Settlement Commissioner stated:‑ "In view of the above report, the plot being put to auction is an evacuee properly and has, not so far been disposed of, therefore, it will be auctioned today." It is very much clear that the questions whether the disputed property was a part of 'Chapparl transferred to Muhammad lqbal and others, the predecessor‑in‑interest of the petitioner or not and whether the same was available at the time of transfer to Ch. Nazir Ahmad, respondent No.3 are questions of fact. So the dispute between the parties requires deep inquiry and investigation, which is neither permissible nor desirable in writ jurisdiction. It seems to me that the D.S. C. has not flouted the provisions of relevant law. The impugend order does not suffer from any legal infirmity.

5. For what has been said above, I do not see any justification to interfere with the impugned order. The petition is, therefore, dismissed. The parties are left to bear their own costs. A.A. Petition dismissed.