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Civil Appeal No. 60 of 1962, decided on 6th February 1964.
(On appeal from the judgment and order of the Custodian of Evacuee Property, West Pakistan and Karachi, dated the 19th November 1960).
Art. 160‑Special leave to appeal to Supreme Court‑Jurisdiction of Court under Art. 160, "restricted"‑[Muhammad Saeed v. Election Petitions Tribunal West Pakistan P L D 1957 S C (Pak.) 91 rel.]
S. 25‑Custodian ‑ Vesting of all evacuee property in Custodian‑Custodian a "judge in his own cause"‑Not a Court.
S. 20‑Confirmation of transfer of evacuee property Order of confirmation cannot be challenged in appeal before Supreme Court if Custodian and his Subordinate Officers have functioned "within spirit and intention of evacuee property law and have made real and honest endeavour to judge facts on merits and to apply law.
---S. 20‑Confirmation of transfer of evacuee property Question lies "exclusively between Custodian and party seeking confirmation‑Transfers of evacuee property by act of allotment of Rehabilitation Authority ‑ "Fully within scope of Custodian's protective power"‑ "Main and only true parties to proceedings are Custodian himself and transferee‑Allottee has no vested right in property‑Failure to notify allottee will not vitiate proceedings in confirmation‑(Per majority : Cornelius, C. J., Fazle‑Akbar and Hamoodur Rahman, JJ. agreeing ; S. A. Rahman, J. and Kaikaus, J. contra)‑[Muhammad Saeed v. Election Petitions Ttibu‑al, West Pakistan P L D 1957 S C (Pak.) 91 rel. and Abut Hossain Sana v. Suwat31 Agarwala P L D 1962 S C 242 ref.].
S. 43‑Powers of Custodian‑"Widest amplitude"‑Supreme Court will not "review" judgment of Custodian, jurisdiction to form which is confined by Legislature to Custodian alone, even if he decides wrongly.
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--‑Point not taken before Custodian or in concise statement‑Not allowed to be raised during argument.
S. 20‑Confirmation of transfer‑Deed of transfer executed and presented for registration before, but copied into registration book after 1‑3‑1947‑Transfer does not require confirmation ‑Registration Act (XVI of 1908), Ss. 47 & 61.
Ss. 20 & 43‑Confirmation of transfer refused for want of income‑tax clearance certificate‑Second application supported by such certificate not incompetent‑Word "final" in S. 43‑Means, point decided cannot be re‑agitated.
S. 20‑Time‑barred application for confirmation of transfer, unaccompanied by application for condonation of delay ‑Custodian cannot be supposed to have impliedly condoned delay by his having confirmed transfer at revision stage‑Limitation Act (IX of 1908), S. 5‑Administration of Evacuee Property Rules, 1950, r. 17‑A.
‑Party against whom affidavit is produced entitled, in absence of special circumstances, to have deponent put in witness- box, and to cross‑examine.
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---Court may, ordinarily, allow proceedings of one kind to be treated as proceedings of another kind if that is necessary for doing justice between parties‑(Application for "revival" of proceeding, treated as ' fresh" application).
Mahmud Ali Senior Advocate Supreme Court instructed by M. Siddiq Senior Attorney for Appellant.
Sayeed A. Sheikh Advocate Supreme Court instructed by Shafiq Ahmad Attorney for Respondent No. 1.
A. K. Brohi Senior Advocate Supreme Court (S. A. Nusrat and M. S. Kazilbash Advocate Supreme Court with him) instructed by Shafiq Ahmad Attorney for Respondents Nos. 5 and 6.
Respondents Nos. 2, 3 and 4 : Ex parte.
Dates of hearing: 5th and 6th December 1963.
.‑The order against which special leave to appeal has been granted was made by the Custodian of Evacuee Property, Federal Capital and West Pakistan under an exclusive jurisdiction conferred upon him by the Pakistan Administration of Evacuee Property Act XII of 1957. It was made on the 19th November 1960, when the Constitution of 1956, was in force, and an appeal lay to this Court from quasi‑judicial Tribunals, by special leave. This Was under Article 160. It is desirable that at the outset of this judgment I should state the view held by this Court with reference to Article 160 of the late Constitution, and I cannot do better than to reproduce here the weighty observations made by the late Chief Justice of Pakistan Mr. Justice Muhammad Munir in Muhammad Saeed v. Election Petitions Tribunal (P L D 1957 S C (Pak.) 91), viz.
"I may state at the very outset that the supervisory jurisdic tion of the Supreme Court under Article 160 is a restricted jurisdiction and an appeal to invoke it will not succeed where a special Tribunal, like the Election Tribunal, has functioned within the spirit and the intention of the statute that created it and while so functioning has made a real and hones endeavour to judge facts on the merits of the evidence and to apply the law to them. A finding of fact thus arrived at, however, erroneous, will not be scrutinized or reviewed by this Court, and even if an error of law be committed by the Tribunal that will not be considered to be a sufficient ground for interference unless the law so misunderstood or misapplied raises some general question of fundamental importance to the proper functioning of the Tribunal or the decision of the case."
There is no question at all that the Custodian of Evacuee Property is not constituted as a Court. The functions which he performs in respect of appeals and revisions generally follow the procedure, and principles applicable to judicial proceedings. But in one most important aspect, they fall short of being fully judicial, namely, that the Custodian is required to decide questions raised as to the ownership of, and other rights in and in respect of evacuee properties which. are all vested in the Custodian, by operation of law. The Custodian is made a judge in his own cause in respect of such proceedings, and this position is not affected by the consideration that the vesting is an the Custodian not as a person but as a corporation sole, in whom the evacuee property is vested to be applied specified uses, in particular, the rehabilitation of the vast flood of refugees. The Custodian in his official capacity has a real interest in the properties vested in him to preserve against claims by persons other than refugees. Experience shows that in the vast majority of cases, that interest has not been lightly parted with. Consequently, the Custodian does not satisfy one essential requirement of a Judge in respect of the proceedings which come before him affecting evacuee property vested in him, and those proceedings could at best be claimed to be merely quasi‑judicial.
The principal functions of the Custodian are of course administrative, and it is unquestionable that the quasi judicial powers vested in him are intended to be used and are in fact used to regulate and facilitate the administrative side of his task, which is to provide for the equitable user of evacuee property by just distribution among the refugees according to their needs, and by proper application to the re‑establishment of the economy of Pakistan. It is true that by the statute and the rules and schemes there-under, the function of distribution of evacuee properties as indicated above was not free of regulation, but in almost all aspects of administration of his functions, the Custodian was yet allowed a wide discretion. An important function entrusted to the Custodian was that of applying restrictions to the transfer of property by evacuees. These are now dealt with under section 20 of Act XII of 1957. The present proceeding arose out of an application under section 16 of the earlier law, namely Ordinance (XV of 1949), but in relevant respects the law was not changed when the Act of 1957 was passed to replace the Ordinance of 1949. Section 20 of the Act provides that no transfer of pro perty made on or after the 1st March 1947, by an evacuee should be effective to confer any right unless the transfer was confirmed by the Custodian. For this purpose, an application was to be made within the prescribed time and this could be made by a party to the transaction, or by any person claiming under such a party. The Custodian was to hold a summary enquiry in the prescribed manner and was required to reject the application if certain conditions were not satisfied, i.e., if the transfer was in contravention of a law, or if it was not covered by a no- objection certificate from the Income‑tax Authorities. He had discretion to reject the application if he formed the opinion that the transaction was not entered into in good faith or if it was for inadequate consideration. But a further and larger discretion in this respect was also vested in him by the provision that if he thought that the transaction should not be confirmed for "any other reason" he was at liberty to reject the application. Even when he decided to allow the application he was empowered by the section to impose such terms and conditions as he thought fit. The law clearly inclines against easy divestment, and in favour of retention of such properties for application to the uses for which the statute was, in the main, enacted.
By the order under appeal the Custodian dismissed an application by the present appellant Ata Ullah Malik for revision of an order of the Additional Custodian dated the 10th September 1958, whereby an earlier contrary order of the Deputy Custodian having been set aside, a sale by certain evacuees in favour of two parsi residents of Karachi, named Rashid Merwan Irani and Khudadad Ardeshar Irani (hereinafter referred to as "the Iranis") was confirmed unconditionally. In order to appreciate how far the case falls within the restricted power which this Court exercises, to interfere with orders of a special Tribunal exercising exclusive jurisdiction, it is necessary that the progress of the case before the authorities of the Custodian's Department should be briefly stated. That is necessary also for a proper examination of the justice of the whole case, before coming to the con sideration of the possible scope of interference with the Custodian's order.
The property in the case consists of an area of about 300 sq., yards of land situated in the business quarter of Karachi. It was told by an evacuee Battan Singh on the 15th May 1947, to two persons Ishar Singh and Amar Singh who themselves became evacuees later. This sale was registered on the 11th August 1947. The land formed part of a larger area of 837 sq. yards which the aforesaid Battan Singh had bought from the Karachi Estate Board on the 19th December 1946, the deed being registered on the 14th March 1947. The evacuees Ishar Singh and Amar Singh on the 13th September 1947, sold the land which they had bought from Battan Singh to the Iranis. The deed was presented for registration on the same day, but was actually registered on the 27th July 1948. An application for confirma tion was made to the Custodian by the Iranis on the 23rd May 1950. They applied only for confirmation of the sale to them by Ishar Singh and Amar Singh and recited that Rs. 2,000 had been paid as earnest money on the 11th September 1947, and at the execution of the document a further sum of Rs. 15,000 was paid and in addition the vendees had undertaken to discharge Rs. 10,000 due to the Karachi Estate Board, by instalments. At that time no income‑tax clearance certificate was required for the purposes of registration and none had therefore been produced. No application had been made for such a clearance certificate and confirmation was accordingly asked for. On the 14th October 1950, Mr. Akbar Hussain the then Custodian of Evacuee Property confirmed the sale. His order shows that he had con sidered the question of consideration, and that the required income‑tax clearance certificate had been produced.
It appears that the property had in the meantime been allotted to Ata Ullah Malik, the present appellant. He applied to the Custodian on the 5th July 1951, for review of the order of the 14th October 19 50, relying firstly on non‑confirmation of the earlier sale by Battan Singh to Ishar Singh and Amar Singh and secondly upon non‑production of an income‑tax clearance certificate in respect of Battan Singh. It was said, in indirect terms, that the question whether consideration had been paid required to be examined. On the 29th February 1952, the then Custodian Mr. Fayyaa Ali accepted Ata Ullah Malik's petition and set aside the confirmation of the sale on the grounds firstly, that the sale to Ishar Singh and Amar Singh by Battan Singh had not been confirmed and secondly that Ishar Singh and Amar Singh therefore had no rights to pass to the Iranis.
A fresh application for confirmation was made by the Iranis on the 7th April 1952, and this led to lengthy proceedings, in which Ata Ullah Malik took part. He objected that the applica tion was barred by limitation and this objection was considered and the delay was condoned by order dated 16th May 1953, after which the proceedings went on until on the 19th May 1955. having granted a great number of adjournments for production of the income‑tax clearance certificate (in respect of the earlier sale) the Deputy Custodian, while being doubtful whether the vendees would care to clear the very high income‑tax dues which had accumulated, dismissed the application for failure of production of the said certificate, but left it open to the applicants "to move for revival of this application within fifteen days from the date of obtaining the income‑tax clearance certificate." Ata Ullah Malik moved the Custodian by way of appeal to have this last condition expunged, and on the 9th November 1955, the then Custodian Mr. Mansur Alam holding that such agreements of transfer of an evacuee property "should be finalised," and that it was doubtful whether the Iranis could "be expected to pay the heavy liability of income‑tax in addition to the sale considera tion already paid," decided that there was no point in keeping the case open, and therefore deleted the words to that effect in the Deputy Custodian's order.
The record of the proceedings shows that on the 12th May 1958, an application made by the Iranis for revival of the pro ceedings was allowed, and three days later, arguments were heard after a statement of Khudadad Ardeshar Irani had been recorded. An order was made on the 30th July 1958, rejecting the applica tion. A grievance is made of the failure of the Deputy Custodian to send notice of this proceeding to Ata Ullah Malik. The order shows that the Deputy Custodian was relying on the notice issued on the 16th April 1952, so that it is clear that Ata Ullah Malik was not a party to the proceedings on the 12th and 15th May 1958. In this connection, it is important to note the grounds on which the rejection was based, as they are relevant to the con tentions previously and subsequently raised by Ata Ullah Malik. The grounds were as follows. It was held that condonation of the delay in the making of the application of April 1952, had been obtained by "fraud and misrepresentation." Secondly the Deputy Custodian found that the Iranis had no locus standi to apply for confirmation of the sale by Battan Singh to Ishar Singh and Amar Singh. Thirdly in the absence of confirmation of the sale of Battan Singh to Ishar Singh and Amar Singh, the latter had no right in the property which they could transfer to the Iranis. On the point of consideration, the Deputy Custodian held that the price paid for the property was "much below the market value." In this connection, he mentioned that the price could be estimated by the "municipal assessment formula" which was forty times the rent of the building plus the value of the land, or on the Central P. W. D.'s formula of assessment which is based on the cost of construction plus the value of the land, the P. W. D. construction rates ranging between Rs. 9 to Rs. 13 per sq., ft. Alternatively, the Rehabilitation Ministry had been applying the formula of forty times the annual rent for assessment of properties left behind by the refugees in India. Without attempting to evaluate the property on any one of these three bases the Deputy Custodian came to the conclusion that the consideration was inadequate.
The Iranis appealed against this order to the Custodian, and the appeal was heard by the Additional Custodian (Mr. Riazuddin Ahmad) who allowed it on the 10th September 1958, on full consideration of all the facts and evidence. He decided that to exclude the application on the ground of limitation would be unduly hard because it was obvious that omission by the Iranis to apply for confirmation of the sale‑deed of Battan Singh to Ishar Singh and Amar Singh was due to inadvertence or the wrong advice of counsel, and further, there was nothing to prove misrepresentation or fraud. The decision by the Deputy Custodian that the Iranis had no locus standi to apply for con firmation of the sale by Battan Singh was held to be bad because the Iranis were claiming under the previous vendees Ishar Singh and Amar Singh, and were thus entitled under section 16 of the Ordinance of 1949 to make the application. The question of consideration was gone into in detail. It was found that on a rental basis the value worked out at Rs. 24,000, and that in fact the appellants having already paid Rs. 17,000 to the vendors and Rs. 14,892‑4‑0 to the Karachi Estate Board had in fact paid something like Rs. 32,000 which was more than their vendors had paid to Battan Singh. As to the Municipal formula, it was held that there was no proof what it was, nor was there any proof of the P. W. D. rates assumed by the Deputy Custodian. Holding that it was not proved that the consideration was inadequate, the Additional Custodian allowed the appeal and confirmed the sale‑deeds by Battan Singh to Ishar Singh and Amar Singh and by the two latter to the Iranis "with effect from the date of their execution."
Ata Ullah Malik next moved the Custodian by way of revision dated 11th December 1959, in this petition mention was specifically made of the deletion by the Custodian on the 9th November 1959, of the permission granted by the Deputy Custodian on the 19th May 1955, to the Iranis "to move for the revival of this application within fifteen days from the date of obtaining the income‑tax clearance certificate. The application after reciting certain earlier steps taken by Ata Ullah Malik, mentioned that three sale‑deeds had been executed in respect of this land (including the earlier sale to Battan Singh) and made some vague allegations to the effect that the income‑tax and other Government dues amounted to more than the value of the property itself and it was very doubtful whether the Iranis had cleared these dues. It was suggested also though vaguely, that the valuation had been artificially reduced by getting the rent reduced in the Corporation record, and further that the transaction in favour of the Iranis "seems to be bogus and inoperative in law." Stress was again laid on the non‑mention before the Deputy Custodian and the Additional Custodian of the proceed ings of the 19th May 1955 and 19th November 1955, before the Deputy Custodian and the Custodian (Mr. Mansur Alam) respectively.
The Custodian thereupon made certain enquiries in regard to the income‑tax matter, from the Income‑tax Officer, and there have been placed on the record three letters from the Income‑tax Officer, one in reply to the Custodian which is dated 17th May 1960, and two to Khudadad Ardeshar Irani dated 27th July and 15th August 1960. These letters did not contain any reference to the final issue of an income‑tax clearance certificate, but the order under appeal itself shows that such a certificate "was re-granted to the respondents on the 25th October 1960." This was one of the questions raised before the Custodian at the hearing of the revision. Another was as to whether the delay to applying for confirmation should have been condoned, and the Custodian decided that the delay had been satisfactorily explained because the original application had been moved in the year 1949 and in fact the sale had been first confirmed in the year 1950. The last question raised before him was as to the consideration paid for the house and the Custodian accepted the view formed by the Additional Custodian namely that the Iranis had paid nearly Rs. 32,000 and this price was not inadequate.
It should be sufficiently clear from the above recital of facts that there is no question but that the Custodian and his Sub ordinate Officers have functioned within the spirit and intention of the Evacuee Property Law. There can be no doubt that each of them made a real and honest endeavour to judge the necessary facts on the merits of the evidence and to apply the law to them.
Mr. Mahmud Ali has not attempted to show that the findings arrived at by the Additional Custodian and the Custodian regarding the valuation of the property are in any way erroneous. A finding of "fraud and misrepresentation" regarding condona tion of the delay by the Deputy Custodian on the 16th May 1963, had been recorded by his successor in his order of the 30th July 1958, but both the Additional Custodian and the Custodian after consideration of the facts, found that this finding was baseless and set it aside, and there is no question but that their conclusion was honestly reached. Before us, Mr. Mahmud Ali attempted to argue that the issue of the income‑tax clearance certificate had been obtained in some irregular fashion, but as to this it is enough to point out that, following upon Ata Ullah Malik's application of the 11th December 1959, the Custodian himself directed that information should be sought from the Income‑tax Officer whose letters referred to above clearly shows that he had in mind the consideration now put forward e.g., that the total amount of the dues exceeded the value of the property, and despite this, subsequently on the 25th October 1960, the Income‑tax Officer did issue the necessary certificate.
A point of law was raised before us namely that the order of Mr. Mansur Alam dated 9th November 1955, was a definitive and determinative order in relation to the application for con firmation, so that it was not possible for that application to be revived thereafter, as was done in May 1958. The argument raises the question as to the nature of the contest, if any, when an application is made under section 20 for confirmation of the sale in respect of property which but for such confirmation would be evacuee property. The power has been given in this respect to the Custodian, in whom the property is vested. The question whether the title in the property which is vested in the Custodian should be confirmed in favour of a transferee by the Custodian himself would appear to lie exclusively between the Custodian and the party seeking the confirmation. As has been observed already, the sense of the law which the Custodian is appointed to administer is distinctly favourably to the retention by the Custodian of the property vested in him, and against anything resembling easy divestment. The Custodian is armed with large powers to protect the rights so vested in him. Any further rights created in respect of these properties by any other authority, e.g., by act of allotment of a rehabilitation authority, ' are full within the scope of the Custodian's protective power. And it is to be noted that at the time when the question of confirmation was taken up, no Proceedings had yet taken place under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which could have the effect of divesting the Custodian of his title. The appellate order of the Additional Custodian allowing the transfer was made in September, 1958, and it was not until August 1959, that evacuee properties generally were vested in the Government by notification, and so became available for transfer to claimant refugees and others. A Provisional Transfer Order was issued in favour of Ata Ullah Malik, but it was later cancelled, in consequence of the confirmation order. It would seem then that there is no force in the argument that the revival order is vitiated by failure to notify Ata Ullah Malik before it was made. He had no vested right in the property. Such right as he possessed as an allottee was derived from, and was held under the title which was vested in the Custodian, and which it was the duty of the Custodian, under the law, to protect within the meaning of section 20 aforesaid.
The mere fact that at the instance of Ata Ullah Malik an allottee under the Custodian, an express permission given by the Deputy Custodian to the Iranis to apply for revival of the pro ceedings within fifteen days of obtaining an income‑tax clearance certificate was deleted, would clearly be without effect upon the capacity of the Custodian's Department to allow revival of those proceedings, for the main and, in fact, the only true parties to the proceedings were the Custodian himself, and the transferee seeking confirmation of his transfer. The dismissal of the application for lack of a formality required, namely the income- tax clearance certificate cannot be thought by any stretching of legal concepts to have given rise to any vested rights in Ata Ullah Malik or any other else to prevent the revival of those proceedings. There had been no decision on the merits, and even in the case of criminal proceedings it is well‑settled law that such a non‑definitive order as a discharge of the accused person, in a criminal prosecution if made otherwise than on the merits, does not have the effect of terminating the proceeding so that it cannot be revived later. (See the judgment of this Court in the case of Abul Hossain Sana v. Suwalal Agarwala (P L D 1962 S C 242.).
Something was made in arguments of the allegation that the order of Mr. Mansur Alam dated 9th November 1955, had been concealed from the Deputy Custodian in the revival proceedings. The Deputy Custodian, of course, decided in favour of non -divestment of title. As has been pointed out, specific mention was made of the order and the earlier order of the Deputy Custodian in the revision application to Mr. Justice Masud Ahmad, as Custodian, but his order which was made after hearing counsel for both parties, makes no mention of them giving the impression that it was thought fit not to raise the contention before him. However that may be, it is clear that the final order of the Custodian was made after these facts had been placed before hire Even assuming that there is failure to consider and decide this objection, it is without fundamental effect in relation to the decision of the case, for, as has been seen above, proceedings fn confirmation under section 20 of the Act, 1957, are not deter mined with finality by such an order as was made by the Deputy Custodian on the 19th May 1955, assuming that it contained no express provision for revival of the proceedings.
For these reasons I would dismiss this appeal with costs.
‑I have had the advantage of seeing the judgment proposed to be delivered in this case by my learned brother, Kaikaus, J. I am inclined to agree with him generally and to concur in the conclusion as he has reached on the facts of this case. The learned Custodian's order under appeal, shows no awareness of the issues raised on behalf of Ata Ullah Malik by his revision petition and omits all reference to the order of his predecessor which shut out the possibility of revival of pro ceedings before the Custodian. I wish to point out that the only way in which the learned Custodian could have allowed the proceedings to be treated as revival proceedings was to review his predecessor's order dated 9‑11‑55 so as to remove the bar against that course. He might be persuaded to resort to this procedure even now and in that case the question of a fresh application for confirmation being barred by time would not arise. The matter rests in his discretion. But at the same time, since Ata Ullah Malik had from the very beginning been con testing the consideration for and the genuineness of the transaction and he was a party very much interested in the property in question, he bad to be given an opportunity to establish his objections by evidence, before the Custodian could pass a final order in the case. I would therefore agree that the appeal be allowed and the case sent back to the Custodian for fresh disposal in accordance with law I would make no order as to costs in this Court, in the circumstances of this case.
----I have had the advantage of reading and fully considering the judgments of my Lord the Chief Justice and of my learned brother Kaikaus, J.
For the reasons which have been clearly and fully set forth in the judgment of the Chief Justice and which it is unnecessary for me to repeat, I am also of opinion that this appeal should be dismissed.
I would however, like to add some observations of my own.
It is impossible to read the Custodian's order without seeing that he has honestly considered all the relevant circumstances bearing on the question whether the sale should be confirmed or not. This being so, it is not for this Court to say while exercising its limited jurisdiction in such matters that there was something he had considered which he ought not to have considered, and something he had not considered which he ought to have considered and so his order was bad. This would be equivalent to saying that his order could be reviewed by this Court. I think we would be exceeding our jurisdiction if we attempt to review a judgment the jurisdiction to form which the Legislature has confined to the Custodian and the Custodian alone.
It is true that notice under rule 12(5) had not been served on the appellant ; but the fact remains that in the revision taken by him the whole circumstances of the case were placed before the Custodian and he after fully considering them affirmed the order of the Additional Custodian confirming the sale. It cannot therefore, be said that he has not acted in a judicial manner.
In the Act the Custodian's power has been expressed in words of the widest amplitude. Whether an application is competent, whether it is in proper form, and whether it has been preferred within the prescribed time, are all matters for decision of the Custodian. Even if he decides these questions wrongly, u this Court I think, cannot interfere with his order. The question thus agitated in this appeal do not seem to be questions which bear upon the jurisdiction of the Custodian or his authority to entertain them.
In these circumstances it cannot be said that he acted without jurisdiction, or in excess of it, or in violation of the principles of natural justice. I would therefore, dismiss this appeal but make no order as to costs.
‑This is an appeal by special leave against the order of the Custodian of Evacuee Property dated the 19th November 1960, dismissing a revision petition against the appellate order of the Additional Custodian confirming two transactions of sale of evacuee property.
It is necessary to state the facts in some detail. By a sale deed which was executed on the 19th December 1946, R. M. Gandhi sold plot No. 298, A. M. Quarters, Karachi, to Battan Singh for a sum of Rs. 49,703‑10‑0. Out of this considera tion Rs. 28,771‑5‑0 were retained by the vendee for payment to the Karachi Estate Board from whom R. M. Gandhi had pur chased this plot. The total area of the plot was 8325 square yards. Battan Singh raised some construction on this plot and on the 11th August 1947, sold 297 square yards out of the total area to Ishar Singh and Amar Singh for a sum of Rs. 31,540 out of which Rs. 17,000 were paid in cash and the balance of Rs. 14,540 was left with Ishar Singh and Amarsingh for payment in eleven equal instalments to the Karachi Estate Board. This sum of Rs.14,540 represented the proportionate amount payable to the Karachi Estate Board in respect of 297 square yards. The deed in favour of Amar Singh and Ishar Singh was presented for registration on the 11th August 1947, but was registered on 16th June 1948. Ishar Singh and Amar Singh in turn sold the property purchased from Battan Singh to Rashid Merwan Irani and Khudadad Ardsher Irani by a sale‑deed dated the 13th September 1947, which was registered on 27th July 1948. The consideration for this sale was Rs. 27,000, out of which Rs. 2,000 were stated to have been paid as earnest money, Rs. 15,000 were stated to have been paid in cash on the day the deed was executed, and Rs. 10,000 were to be paid to the Karachi Estate Board in respect of the balance of the instalments. It was stated in the deed that the vendees were to pay to the Karachi Estate Board either the sum of Rs. 10,000 or such sum as may be found to be payable as the proportionate share of the price which remained payable in respect of the whole plot. Ishar Singh and Barnam Singh were both evacuees. Rashid Merwan Irani and Khudadad Ardsher Irani who are respondents 5 and 6 in this appeal and are hereinafter referred to as such filed an application before the Custodian of Evacuee Property on the 23rd May 1950, under section 16 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, praying for confirmation of the sale in their favour. On the 14th of October 1950, Mr. Akbar Hussain, the then Custodian of Evacuee Property, confirmed the sale.
In September 1947, Ataullah Malik who is the appellant in this appeal had been allotted the plot which had been sold by Ishar Singh and Amar Singh to respondents 5 and 6. On the 5th of July 1951, he applied to Mr. Akbar Hussain, Custodian of Evacuee Property, for a review of his order confirming the sale in favour of respondents 5 and 6 on the ground that the sale in favour of Ishar Singh and Amar Singh itself required confirmation. This application for review came up for decision before Mr. Fayyaz Ali, the successor‑in‑office of Mr. Akbar Hussain on 29th February 1951. Mr. Fayyaz Ali set aside the order of Mr. Akbar Hussain on the ground that there being no confirmation of the sale by Battan Singh who was himself an evacuee there could be no confirmation of the sale in favour of respondents 5 and 6. On the 7th April 1952, respondents 5 and 6 put in another application for confirmation of both the sale‑deeds before the Additional Custodian, Evacuee Property, Karachi. In this application the only persons who were made respondents were Ishar Singh, Amar Singh and Battan Singh evacuees. Neither the appellant, on whose application the previous order of con firmation had been set aside, nor the Rehabilitation Authorities were made parties. It was stated in this application that the order passed by Mr. Akbar Hussain on 14th October 1950, had on review been set aside by the Custodian, but there was no mention of the person who had filed the review application. The evacuee respondents were served by a notice in the Daily Anjam Karachi. The appellant though he had not been made a party was impleaded on his own application. At some stage, it does not appear how, the proceedings were transferred from the Additional Custodian to the Deputy Custodian. There were a large number of hearings and ultimately on the 19th May 1955, the Deputy Custodian after having granted a number of adjournments for the production of the income‑tax clearance certificates rejected the application for non‑production of such certificates. He observed in the order that the income‑tax liabilities of the vendors were above Rs. 30,000 and the total consideration for the sale being only Rs. 27,000 it was doubtful whether the income‑tax would be paid for getting the sales confirmed. While rejecting the application, however, the Deputy Custodian permitted respondents 5 and 6 to move for the revival of the application for confirmation within fifteen days from the date of obtaining the income‑tax clearance certificate. It may be stated here that the application for confirmation was barred by time and an application for condonation of delay had also been filed by respondents 5 and 6 under section 5 of the Limitation Act. On the 16th May 1953, the Deputy Custodian had condoned the delay.
Against the order passed by the Deputy Custodian rejecting application for confirmation it was the appellant who filed an appeal before the Custodian. The appellant contended in this appeal that the permission given to respondents 5 and 6 to move for the revival of the application within fifteen days of obtaining the income‑tax clearance certificate was improper. Notice of this appeal was served on respondents 5 and 6, but nobody appeared on their behalf. By an order dated the 9th November 1955, the Custodian deleted the last sentence in the order of the Deputy Custodian by which an application for revival had been permitted. This sentence ran:
"It will be, however, open to the applicants to move for the revival of this application within 15 days from the date of obtaining the Income Clearance Certificate."
The Custodian observed in his order that the position with regard to evacuee properties which were subject to agreements of transfer had to be finalised.
On the 7th May 1958, that is, about three years after the dismissal of the second application for confirmation respon dents 5 and 6 applied to the Deputy Custodian for resumption of the proceedings. They attached to this application a certificate dated the 30th April 1958, granted by the Income‑tax Authorities which stated that there was no objection to the confirmation of the transfer mentioned in the certificate. In the particulars of the transfer stated in this certificate the only person mentioned as the vendor was Battan Singh while respondents 5 and 6 were mentioned as transferees. The certificate obviously related only to the liability of Battan Singh and was not an income‑tax clearance certificate in respect of Ishar Singh and Amar Singh whom it did not mention at all. This application as already stated was for resumption of proceedings and it was presumably filed on the strength of the permission granted to respondents 5 and 6 to file an application for revival within fifteen days of obtaining the income‑tax clearance certificate. The application made no mention of the appellate order of the Custodian by which he had deleted the last sentence of the order of the Deputy Custodian, thereby setting aside that portion of the order of the Deputy Custodian by which permission for revival had been granted. The number of the original application i.e., F. 3 (22)/52 was mentioned in the heading of the application and it was prayed that the same application may be revived. As the application was for revival the names of the respondents were only shown as "Ishar Singh, Harnam Singh and others." In the original applica tion as has already been stated, only the vendors had been made parties. On the very day on which this application was presented the following order was passed by the Deputy Custodian
"The application or case is allowed to be reviewed as per order of previous D. C. Judicial."
The words "as per order of previous D. C. Judicial" show that though called a "review" a revival was being allowed on account of the order passed by the Deputy Custodian on the 19th May 1955. No notice of this application for revival was served on any party. By an order dated 30th July 1958, the Deputy Custodian dismissed the application on the merits. The order of the Deputy Custodian shows that he was dealing with the Original Application No. F. 3 (22)/52. He stated in the beginning of his order that notices had been served on the parties concerned through "Anjam" on 16th April 1952. This reference related to the original application and the persons on whom notices were so served were only the vendors. The Deputy Custodian was of the opinion that in the first place with respect to the transaction between Battan Singh and Amar Singh respondents 5 and 6 had no right to apply for confirmation and secondly the consideration for the transfer in favour of the respondents 5 and 6 was "much below the market rates." For an assessment of the market value the Deputy Custodian had inspected the spot.
Against the order of the Deputy Custodian respondents 5 and 6 filed an appeal before the Additional Custodian of Evacuee Property. In this appeal too the only persons who were made parties were the vendors i.e., Ishar Singh, Amar Singh and Battan Singh who were all evacuees and as a result no notice was served either on the appellant or on the Rehabilitation Authorities. The Additional Custodian held that respondents 5 and 6 had locus standi to file an application for confirmation. He did not deal with the question of actual payment or the bona fides of the con sideration, but assuming that the consideration mentioned in the deed had in fact been paid, he dealt with the question of adequacy of consideration and said : "there is a presumption that the vendor was sensible enough to obtain adequate consideration for the property sold by him and the burden of proving that the consideration is inadequate lay on the party who alleges it to be inadequate." It is not entirely out of place to observe here that no notice having been served of the application or the appeal on any party except the vendors the Additional Custodian, if he was aware of the persons on whom notice of the proceedings had been served could only have been contemplating an objection by the vendor that the consideration was inadequate and a burden on the vendor to show that it was inadequate. The Additional Custodian found that on the record inadequacy of consideration was not established and on the basis of this finding, by an order dated 10th September 1958, he accepted the appeal and confirmed the transaction of sale.
It is a matter of some surprise that neither the Deputy Custodian nor the Additional Custodian examined the Income -tax Clearance Certificate which had been produced by respon dents 5 and 6 which related to Battan Singh alone and which referred only to a direct transfer by Battan Singh in favour of respondents 5 and 6. Section 16 of the Pakistan (Administration of Evacuee Property) Ordinance (now section 20 of the Act) debars the Custodian from confirming a transfer not covered by a proper certificate. It was the duty of the Deputy Custodian and the Additional Custodian to satisfy themselves as to the existence of a proper certificate. It is surprising too that the Additional Custodian neither made the Rehabilitation Authority a party nor dealt with the question of payment and bona fides of consideration.
On the 11th December 1959, the present appellant submitted an application in revision before the Custodian against the order of the Additional Custodian dated the 10th September 1958. He stated in this application that as an allottee of the property in dispute he had applied for an order of transfer of the property in his favour and that during the proceedings for transfer he had come to know that respondents 5 and 6 had got the sale‑deeds of 11th August 1947 and 13th September 1947, confirmed. (The order of transfer in favour of the appellant had been passed on the 16th October 1959, but the P. T. O. appears to have been issued subsequently). He attacked the order of confirmation as having been "obtained by concealment of facts, mis‑statement, deception and fraudulently." He pointed out that while the Deputy Custodian in his order of 19th May 1955, had granted respondents 5 and 6 permission to file an application for revival, the Custodian of Evacuee Property on appeal had deleted this part of the order of the Deputy Custodian and the application for revival was incompetent. He alleged that he as well as the Settlement Department had been kept in ignorance of the pro ceedings for revival and that respondents 5 and 6 had not given him any notice for rent in spite of the fact that he was in occupa tion of the property in dispute. He made a vehement attack on the bona fides of respondents 5 and 6 as well as on the genuineness of the transaction which they had got confirmed. He prayed that the order of the Additional Custodian be set aside and that he be also compensated for the loss he bad suffered on account of the fraud of respondents 5 and 6. It was also stated in the application that there was no proper income‑tax certificate which was essential for the confirmation of the sales.
During the pendency of the application for revision before the Custodian the Income‑tax Officer, N. C. A. Circle Karachi, informed the Custodian by a letter dated 10th March 1960, that the clearance certificate granted to respondents 5 and 6 on the 30th April 1959, with respect to the property of Sardar Battan Singh had been cancelled and that a sum of Rs. 34,000 was still due from this person on account of income‑tax. It has already been observed that the income‑tax clearance certificate filed with the application for confirmation related only to Battan Singh and with respect to Ishar Singh and Amar Singh no certificate had been produced. The Custodian allowed time to respondents 5 and 6 to secure a fresh certificate. There were some adjourn ments and ultimately on the 25th October 1960, respondents 5 and 6 secured a certificate from the Income‑tax Officer which stated that there was no objection to the confirmation of a sale by three persons i.e., Battan Singh, Ishar Singh and Amar Singh in favour of respondents 5 and 6 for a sum of Rs. 27,000. It would be proper to observe here that the first income‑tax certificate had been granted to respondents 5 and 6 on the 28th of June 1950, with respect to Amar Singh and Ishar Singh. This certificate was cancelled on the 24th November 1954, on the allegation that it had been "wrongly issued" and that there were income‑tax liabilities outstanding against the evacuee vendor who in this case was Ishar Singh. The second income‑tax certificate of 30th April 1958, which related to Battan Singh only was cancelled on 10th March 1960. The certificate obtained by respondents 5 and 6 on 15th October 1960, states that there is no objection to a transfer by Battan Singh, Amar Singh and Ishar Singh. After the issue of the certificate of 25th October 1960, the Income‑tax Officer, N. C. A. Circle, Karachi, again wrote to the Deputy Superintendent, Enforcement Police, Karachi, on 24‑3‑1962, saying "a sum of Rs. 15,112 is also outstanding against the Sikh evacuees Ishar Singh, Harnam Singh, etc., this was left by an oversight. Now the total liability is Rs. 34,000".
The Custodian in the order which he passed on the revision application of the appellant dealt with three matters i.e.‑
(i) the income‑tax clearance certificate ;
(ii) the limitation regarding the original application ; and
(iii) the consideration with respect to the transaction in dispute.
So far as the income‑tax certificate is concerned, the Custodian just referred to the certificate of 25th October 1960, and said that the objection had disappeared. The delay in filing the original application had according to the Custodian been satisfactorily explained because an order of confirmation had first been obtained which had later been set aside. So far as the proof of considera tion is concerned respondents 5 and 6 produced before the Custodian on the 19th November 1960, the very day on which he passed the order, an affidavit of one Mr. Dhanjishaw Cowasji Aga in which it was stated that Rs. 2,000 were paid as earnest money by the vendees to the vendors in his office and a sum of Rs. '15,000 was paid in his presence in the office of the Sub- Registrar. This affidavit of Mr. Aga was accepted by the Custodian as sufficient proof of the passing of consideration. The Custodian also observed in the order, though he did not refer to any material on the record in support of it, that instead of a sum of Rs. 10,000 as stipulated in the sale‑deed respon dents 5 and 6 had paid a sum of Rs. 14,892‑4‑0 to the Karachi Estate Board. So far as the adequacy of consideration is concerned the Custodian simply said that for reasons given in the order of the Additional Custodian he held the consideration to be adequate.
In this appeal learned counsel for the appellant challenges the order of the Custodian on the following grounds :‑
(i) That the application for revival or for resumption of proceedings was not competent because in the first place the Deputy Custodian had no jurisdiction to pass such an order and in the second place the Custodian had by his order dated 9‑11‑1955, set aside that portion of the order of the Deputy Custodian which permitted withdrawal. The application for revival was merely based on the order of the Deputy Custodian which had been set aside and it had been entertained by the successor of the Deputy Custodian because he assumed that the order of his predecessor had not been set aside. The whole basis, therefore, of the application for revival was non- existence.
(ii) That the application was fraudulent. It suppressed the fact that the order permitting withdrawal had been set aside. It also deliberately did not show as a party the appellant, who had got the first order of confirmation set aside by review, who was allottee of the property and in possession of it, and who was a party of the previous proceeding in which the revival had in the first instance been ordered. Respondents 5 and 6 also did not implead the Rehabilitation Authorities.
(iii) That neither the appellant nor the Rehabilitation Authorities had notice of the proceedings and, therefore, quite apart from the question of fraud the whole proceedings before the Deputy Custodian were without jurisdiction and null and void.
(iv) When it was suggested to learned counsel for the appellant that the application for revival may be treated as a fresh application, he contended‑
(a) that the fresh application was barred by section 43 of the Pakistan (Administration of Evacuee Property) Ordin ance ;
(b) that the fresh application would be time‑barred and there was no extension of time by the Deputy Custodian, the Additional Custodian or the Custodian in accordance with section 5 of the Limitation Act ;
(c) that the rules framed under the Pakistan (Administration of Evacuee Property) Ordinance necessitated that he as well as the Rehabilitation Authority be made parties to an applica tion for confirmation of sale and that notice of application be served on them and on account of failure to comply with statutory rules and a principle of natural justice, the proceed ings would be without jurisdiction ;
(v) that the Custodian had acted without jurisdiction in receiving in evidence an affidavit sworn in 1952 for the first time on the day when he passed the order without giving the appellant an opportunity of contesting the affidavit ;
(vi) that there is no proper legal proof on the record either of the passing of consideration or its adequacy and the Custodian has not dealt with it in a manner which would satisfy the requirements of law ;
(vii) that the first transaction, i.e., the sale in favour of Battan Singh by R. M. Gandhi also required confirmation ; and
(viii) that there was no proper income‑tax clearance certificate before the Custodian.
Mr. Brohi who appears for respondents 5 and 6 does not contest that in view of the order of the Custodian dated the 9th November 1955, an application for revival was not competent. He contends, however, that the application for revival can be treated as a fresh application and he does not accept that there was any fraud in presenting the application for revival. Accord ing to him respondents 5 and 6 had no knowledge of the order passed by the Custodian on 9th November 1955. He even urged that no notice of the appeal in which the order dated 9-11‑1955, was passed was properly served on respondents 5 and 6, but we did not allow him to contest the service of notice as the point had not been taken either before the Custodian or in the concise statement filed on behalf of respondents 5 and 6. With respect to the contention of learned counsel for the appellant that if the application for revival was treated as a fresh application it should be dismissed as time‑barred because there was no application for extension of time, Mr. Brohi's reply is that the Custodian should be deemed to have extended time for the filing of a fresh application by his order dismissing the revision petition. As regards the plea of learned counsel for the appellant that the proceedings were null and void for want of service of notice on the appellant and the Rehabilitation Authorities, the answer of Mr. Brohi is that it was open to the appellant to have applied to the Custodian for an opportunity to lead evidence when he filed his application in revision and as he failed to do so he had no right to agitate this point before the Supreme Court. The sale by R. M. Gandhi in favour of Battan Singh does not according to Mr. Brohi require confirmation by the Custodian because the sale was of 19th December 1946. Mr. Brohi also does not accept that a second application for confirmation would not be competent.
Mr. Sayeed A. Sheikh has appeared for the Custodian. He has made no substantial addition to the pleas put forward by Mr. Brohi. The Custodian has filed a concise statement and that statement too does not disclose any further plea.
I would in the first place deal with the contentions as to the need of confirmation for the sale by R. M. Gandhi and the utter incompetence of the second application for confirmation because if either of these contentions has force this appeal must succeed and the order of the Custodian should be set aside.
The Pakistan (Administration of Evacuee Property) Ordinance is effective so far as transfers by evacuees are concerned from 1‑3‑1947. Even if a person became an evacuee after that date any transfer by him made on or after the 1st of March 1947, would have no effect in law till it was confirmed by the Custodian. On this point there is no contest between the parties. The contest is due to the fact that according to Mr. Mahmud Ali the transfer took place on the 14th March 1947, when the sale‑deed was copied into the relevant book in the office of the Sub‑Registrar while according to Mr. Brohi the transfer took place on 19‑12‑1946, and is therefore outside the mischief of the Pakistan (Administration of Evacuee Property) Ordinance. The sale‑deed had been presented for registration on the very day on which it was executed i.e., the 19th December 1946. The Sub‑Registrar made the usual endorsement on the back of the deed on the same day saying that the executant had admitted execution and that a sum of Rs. 16,932‑5‑0 had been paid to the vendor in his presence. However, the sale‑deed was copied into the relevant book on 14‑3‑1947, and it is on this day that the endorsement as to its having been "registered" was made by the Sub‑Registrar. In accordance with section 60 of the Registration Act such an endorsement can only be made after the document has been copied into a book. The contention of Mr. Mahmud Ali that registration took place on 14‑3‑1947, is based on section 61 of the Registration Act which it would be convenient to reproduce here
"61.‑(1) The endorsements and certificates referred to and mentioned in sections 59 and 60 shall thereupon be copied into the margin of the Registration‑book, and the copy of the map or plan (if any) mentioned in section 21 shall be filed fn book No. 1.
(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration. or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52.
It is true that in accordance with this section registration of a document is to be deemed completed when the endorsements and certificate mentioned in sections 59 and 60 have been copied into the margin of the Register‑book. So far as the document itself is concerned, it is to be copied into a book before the certificate of registration under section 60 is endorsed on the document: But the duty of a person who wants to get a document registered is finished when he presents the document for registration. The endorsements and entries in the books are the duties of Registra tion Department and it does not seem reasonable that a person should be prejudiced by the fact that the entries were not made expeditiously. In accordance with section 52 "every document admitted to registration shall without delay be copied in the book appropriated therefore according to the order of its admission." In a case where the question is whether a person had notice of a registered document relating to a particular property .it would be reasonable to hold that as long as that person is not in a position to know whether there exists an entry in the books relating to that property he should not be deemed to have notice of registration. But considerations are not the same when the question is as to the competence of a person to make a transfer. It is not necessary, however, to labour this point further or to decide it finally because of section 47 of the Registration Act which is in the following words
"47. A registered document shall operate from the time from which it commenced to operate if no registration thereof had been required and not from the time of registration."
This section is a complete answer to the contention that title passed at the time of registration. When an unregistered deed is executed, a deed which requires registration, transfer of title remains in abeyance till the deed is registered, but as soon as it is registered the transfer operates in the words of section 47 not G from the date of the registration but from the date on which it would, if no registration was needed, have taken effect. So even if the sale‑deed in dispute was registered on 14‑3‑1947, the transfer took place on the 11th December 1946, and the transaction did not require confirmation by the Custodian.
For the contention that a second application for confirmation was not legally competent at all Mr. Mahmud Ali relied upon section 43 of the Pakistan (Administration of Evacuee Property) Act. It is provided in section 43 that any order passed by a Custodian (which expression includes an Assistant, Deputy or Additional Custodian) shall subject to the provisions relating to appeal, review and revision be final. Learned counsel contended that as the order dismissing the application implied a refusal to confirm this refusal was final and a new application was incompetent. Learned counsel referred to that part of section 16 wherein it is provided that if income‑tax clearance certificate is not produced the application shall be dismissed.
I find no force in this contention. Whenever there is a condition to be complied with by a party before a proceeding becomes competent the dismissal of that proceeding for failure to comply with the condition precedent does not debar the submission of afresh competent proceeding. Examples of such conditions precedent will be found in the failure to pay Court fees or to deposit one‑fifth of the pre‑emption money in a pre-emption suit or to procure sanction of a liquidation Court for filing a suit against an insolvent. The word "final" in section 43 would only mean that a point which has been decided in a pro ceeding cannot be reagitated. If the application was dismissed on the merits, the merits could not be agitated again, but if the application was dismissed because of want of a income‑tax clearance certificate the only point that was decided was that a valid clearance certificate did not exist. That point cannot be agitated again except by way of appeal, review or revision, but the filing of afresh application which is supported by a clearance certificate is not incompetent.
Having cleared the ground by a disposal of these two matters I proceed to deal with the other points raised. I will deal firs with the question whether, if we were to accede to the request of Mr. Brohi and treat the application for revival as a fresh application, this appeal could be dismissed. Even if the applica tion for revival were treated as a fresh application there will still be two reasons why the order under appeal could not stand. The first is that the fresh application would be time‑barred and there is no application for condonation of delay under section 5 of the Limitation Act at all. In accordance with rule 17‑A of the rules framed under the Pakistan (Administration of Evacuee Property) Ordinance, section 5 of the Limitation Act is applicable to I proceedings before the Custodian. Mr. Brohi has contended that the Custodian should be deemed to have decided the question of limitation when he dismissed the revision application of the appellant. It is impossible to accept such a contention. The Custodian was not even conscious of the fact that the application for revival was incompetent and he certainly never applied his mind to the question whether time should be extended after treat ing it as a fresh application. Under section 5 of the Limitation Act there has to be a finding of sufficient cause. In pre‑Partition India sufficient pause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected. However; at least in determining sufficient cause while dealing with the same expression in Order IX, rule 8, C. P. C. and Order IX, rule 3, G. P. C. the Courts had been lenient and had been condoning some negligence i. e. negligence to the extent to which it is regarded as human though they never condoned gross negligence. At the same time the Courts had always been strict in demanding proof of sufficient cause for every day which had expired after the ordinary period of limitation.
In the present case the question as to whether time should be extended if the application for revival was treated as a fresh application was not at all an easy one to decide. The first application which was dismissed on the ground of want of a clearance certificate was itself time‑barred and the Deputy Custodian had to pass an order condoning delay. If a time‑barred application be dismissed for want of a certificate and a fresh application be filed what is the principle on which the question of condonation of delay should be decided It would be difficult to hold that the failure to obtain a clearance certificate is by itself sufficient cause. It is true that the liability to pay income‑tax is of the vendor, but the fact that the vendor does not pay is not by itself a ground for extension of limitation. The vendor was an evacuee who left the country long ago. He is not interested in paying the income‑tax and if extension were granted on this ground a second application for confirmation could always be filed after getting a certificate. The vendee has to pay the income -tax if he wants to get the sale deed confirmed and can his failure to pay be regarded as sufficient cause I have no intention of answering this question so as to affect its decision by the Custodian. I have only pointed out the difficulties of the situa tion and the utter impossibility in the circumstances of imputing any implied decision to the Custodian on the question of sufficient cause.
The second reason why the order of the Custodian could not stand is the want of service of notice of the proceedings on parties who ought to have been served. Rule 12 (5) of the rules framed under the Pakistan (Administration of Evacuee Property) Ordinance which relates to proceedings for confirmation of transfers runs
"12 (5) The Custodian shall cause a notice to be served on the respondent, and the Rehabilitation Authority of the area in J which the property is situate, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in a newspaper at the expense of the applicant."
The rule makes notice obligatory not only, in respect of the Rehabilitation Authority, but in respect of any person interested in or likely to be affected by the result of the application. The appellant was surely a party interested in and affected by the result of the proceedings: He was an allottee of the property in dispute and in possession of it and he would under the Displac ed Persons Act be entitled to its transfer. It is pertinent to observe here that so far as the order of the Additional Custodian is concerned it was, apart from all other considerations illegal on the ground that there was as yet no proper certificate from the Income‑tax authorities so that really we have to consider the position of the appellant at the time when the case came to the Custodian. Before the case came to the Custodian he had secured an order for transfer of the house in his favour on the 16th October 1959. But even when the case was with the Deputy or the Additional Custodian he was an allottee with possession. In fact by virtue of the enactment of the Displaced Persons Com pensation Act which came into force on 26‑3‑1958 he had a vested right with respect to the transfer of the property in dispute. Learned counsel for the appellant contends that the proceedings being in the absence of necessary parties without even an attempt to serve them were null and void and without jurisdic tion. The only reply of Mr. Brohi to this objection is that when the appellant approached the Custodian in revision he should himself have applied for an opportunity to lead evidence and if he did not do so he cannot now attack the validity of the proceedings on the ground that he had no opportunity of being heard. There is little force in the reply of Mr. Brohi and if we consider all the circumstances the argument put forward does not appear to be a possible one. The proceedings before the Deputy Custodian which were being attacked were proceedings for revival of the original application. The plea of the appellant was that the revival was in the first place fraudulent and in the second place wholly incompetent on account of the previous order of the Custodian. It was quite sufficient for the appellant to have simply attacked the proceedings for revival as being of no legal effect for either of these two reasons and to pray that they be quashed. It was not for him to assume that the application for revival will be converted into a fresh application (and as I will presently show there were reasons which may have led to an ultimate refusal on the part of the Custodian to treat the application for revival as a fresh proceeding).
But let me even assume that there was no application for revival, but only a fresh application and let me assume further (to none of these assumptions are respondents 5 and 6 entitled) that the application was within limitation, but the appellant had, though entitled to notice, not been served. Would there be under the circumstances any obligation on the appellant to ask for an opportunity to lead evidence The proceedings before the Deputy Custodian if they were not totally void for failure to implead necessary parties i.e., the Rehabilitation Commissioner and the appellant would constitute an illegal exercise of jurisdiction and the appellant when he approached the Custodian need only have said that the proceedings were illegal and should be set aside. There is no law which obliges a party against whom an order has been passed without impleading him and without serving him with notice when he was entitled to be served, to put forward before an appellate or revisional Court a plea that he should be allowed an opportunity of leading evidence. He is entitled simply to say, in the absence of any provision of law to the contrary, that the proceedings being illegal should be' set aside. Of course the Custodian could himself offer an opportunity to the appellant to lead evidence (after first con verting the revival proceedings into a fresh application) in order to cure the defect in the proceedings but it may be pointed out that a simple opportunity to lead evidence would not have been sufficient. There would have to be at the same time an opportunity to cross‑examine the witnesses produced by the other party. The whole onus in this case lay on respondents 5 and 6. They would not only have to lead evidence, but one of then who had knowledge of the facts would in accordance with accepted principles relating to production of evidence in civil proceedings have to put himself in the witness‑box and subjects himself toy cross‑examination unless he was not afraid of an adverse inference which might be drawn against him.
Rights which parties have in procedure are not to be lightly treated nor can the parties be punished for failure to put forward pleas at stages of a proceeding which they are not by law bound to put forward. It appears to me that in this case not only has there been a failure to comply with a statutory provision as to notice, but there is a gross violation of the principle that orders affecting parties are not to be based without a proper opportunity; of contest.
It would be proper here to consider the propriety of the order passed by the Custodian. As has already been stated there was a strong attack by the appellant on the proceedings for revival for two reasons, that is, fraud and incompetence of the application for revival on account of the order of the Custodian forbidding revival. Yet in the order of the Custodian by which he dismissed the revision application of the appellant there is not one word either about fraud or about the order of 9‑11‑1955. Not only that, the Custodian, assuming that the revival proceedings were wholly competent dealt, though is a summary way, with the question of limitation for the original application, and made a statement that the delay had already been condoned by the Deputy Custodian. Coming to the question of consideration so far as the payment of consideration is concerned the Custodian admitted in evidence, apparently, to the surprise of the appellant, on the very day on which he passed the order, an affidavit sworn by Mr. Aga, an Advocate, without affording the appellant an opportunity of meeting this evidence. It may be observed that every person against whore an affidavit is produced is entitled in the absence of special circumstances to have the deponent put in the witness‑box and to cross‑examine him. So far as adequacy of consideration is concerned the Custodian contented himself with saying that he agreed with the Additional Custodian as to his reasons for accepting the adequacy of consideration. I have already stated that according to the Additional Custodian the onus of proving inadequacy was on the party asserting. There was no party before the Deputy Custodian or the Additional Custodian to assert this for only the evacuee vendors had been made parties.
I will now consider the question whether we should give a direction that the application for revival be treated as a fresh application. Ordinarily Courts have no objection to treat proceedings of one kind as proceedings of another kind if that becomes necessary for doing justice between the parties and I would have had no objection to allow the application, for revival to be treated as a fresh application were it not for the fact that a plea of fraud has been raised and if this plea be correct I would not he inclined to accede to the request of learned counsel for the respondents. The appellant contends that respondents 5 and 6 with full knowledge of the order passed by the Custodian on the 9th November 1955, suppressed that order and submitted an application in accordance with the permission granted by the Deputy Custodian which permission had been set aside in appeal and they at the same time deliberately did not make either the appellant or the Rehabilitation Authority a party in order that the truth may not be revealed. Learned counsel for the appellant points out that even after obtaining the order of the Additional Custodian for confirmation on 10th September 1958, respondents 5 and 6 kept the matter a secret and made no effort to assert their rights as vendees against the appellant who was in possession. It is during the proceedings for transfer of the house that the appellant came to know of the confirmation. He had received an order of transfer on 16th October 1959. The question of fraud has riot been tried, but it is surely a matter which under the circumstances calls for a decision. Conversion of one proceeding into another is an act of leniency on the part of the Court the object of which is the advancement of justice and such leniency may not be shown in a case where the proceeding sought to be converted is a proceeding conceived in fraud. So instead of deciding the question of conversion of the application for revival into a fresh application ourselves, I think we should leave the matter to be decided by the Custodian.
I would, therefore, accept this appeal, set aside the order of the Custodian and remand the case to the Custodian who will either himself or through a subordinate otherwise competent to deal with the matter first decide the question of conversion and if the application for revival be treated as a fresh application further proceedings will be taken as in any original application for confirmation and questions of limitation and merits will be determined. All proceedings shall be taken after notice to the Rehabilitation Authority and the appellant. Costs of this appeal should be costs in the cause.
‑---- I have had the advantage of reading in advance the judgments proposed to be announced by my Lord the Chief Justice and my learned brother Kaikaus, J.
This appeal by special leave (granted on the 15th of December 1961) is from an order of Mr. Masud Ahmad, Custodian of Evacuee Property, Federal Capital of West Pakistan. By this order the Custodian had refused to interfere in revision with the order of the Additional Custodian passed in appeal con firming certain sales in favour of some of the respondents herein.
Such an appeal directly from the order of the Custodian was, no doubt, then maintainable under Article 160 of the late Constitution. But this Court hag consistently held that in exer cising this supervisory jurisdiction given under Article 160 of the late Constitution in an appeal from an order of a Tribunal other than a Court some restrictions have, of necessity, to be imposed. Thus this jurisdiction should not be allowed to be invoked successfully in a case where the Tribunal had "functioned within, the spirit and the intention of the statute that created it and while so functioning had made a real and honest endeavour to judge facts on the evidence and to apply the law to them." (Vide Muhammad Saeed v. Eleetion Petitions Tribunal, West Pakistan) ((1957) 1 P S C R 109=P L D 1957 S C (Pak.) 91).
Keeping this principle in view I have carefully examined the facts of the present case and the orders of the Custodian Authori ties, and have come to the conclusion that the appellant has not been able to establish that the Custodian had acted without jurisdiction or had made "no honest effort to arrive at a correct conclusion.
The Custodian when passing the impugned order was dealing in revision with an appellate order of an Additional Custodian wherein the facts were fully set out. He was also aware of the fact that the petitioner before him was alleging that the confirmation had been obtained by concealing an earlier order of Mr. Mansur Alam, a predecessor Custodian, who had revoked the permission earlier granted to revive the application for confirmation on receipt of the Income‑tax Certificate. The revision of the order was also sought on the ground that it had been made ex parte without any notice even to the present appellant. I am in agreement with my Lord the Chief Justice that neither the first ground took away the jurisdiction of the Custodian Authorities to entertain the second application for confirmation nor the second rendered the impugned order so defective that it must be set aside. The reasons which have led me to this conclusion are substantially the same as those given in the judgment of my Lord the Chief Justice, which I respectfully adopt and do not propose to repeat. I, therefore, also agree that this appeal muse be dismissed with costs.
In accordance with the view of the majority, we dismiss this appeal, but make no order as to costs.
A. H. Appeal dismissed.
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