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Civil Petition for Special Leave to Appeal No. 315 of 1968, decided on 8th October 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore; dated the 7th May 1968, in Civil Revision No. 450 of 1363).
Sched., Part I‑Transfer of house Deputy Custodian, Evacuee Property, refusing to confirm agreement of exchange of a property in favour of A Custodian of Evacuee Property, however, accepting exchange and holding that A was at liberty to institute suit for specific performance‑Meanwhile property disposed of by Settle ment Authorities and transferred to S‑A, thereafter, in his suit for specific performance obtaining ex parte decree in his favour Question whether mere confirmation of agreement of exchange conferred any title on A .so as to deprive S of any locus standi to maintain suit for declaration that ex parte decree obtained by A was fraudulent‑Special Leave to Appeal granted by Supreme Court to consider question.
Sardar Atta Ullah, Advocate Supreme Court instructed by Iqbal Ahmad Qureshi, Attorney for Petitioners.
Nemo for Respondents.
Date of hearing : 8th October 1968.
‑Dr. S. Muhammad Asghar (now deceased and being represented by his brother Muhammad Jamil) made an application before the Deputy Custodian of Evacuee Properties, Rawalpindi, for confirmation of a written agreement for exchange dated 16‑2‑1950, in respect of house No. N/128, Murree Road, Rawalpindi. The petition was dismissed and the order was upheld by the Deputy Custodian‑General, on appeal. The Custodian of Evacuee Properties, however, on 17‑8‑1959, in the revision flied accepted the agreement and held that the doctor would be at liberty to file a suit for specific performance. The suit filed persuant to the order 'was decreed ex parte on 31‑3‑t;0. In the meantime the property was transferred to the petitioner by the Settlement Department on 25.11‑59. The petitioners filed the suit out of which this petition arises for a declaration that the ex parte decree in the suit for specific performance was obtained by fraud. A preliminary objection was raised by the defendants that the suit was not maintainable but the learned Civil Judge did not accept this contention. In the revision filed by the defendant a learned Single Judge of the High Court of West Pakistan, Lahore took ‑the view that on the passing of the order confirming the agreement for exchange the property in question ceased to be evacuee property and as the transfer order in favour of the petitioners .was passed after the house in dispute was declared to be non‑evacuee they had no locus standi to institute the suit.
It as contended that mere confirmation of the agreement, did not confer title on Dr. S. Muhammad Asghar and as the property had been transferred to the petitioners before the decree for specific performance was passed they had a better title. There appears to be substance in the contention. Leave is granted. Security in the sum of Rs. 1,000. Stay already granted shall continue.
Leave granted.
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