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Civil Petition for Special Leave to Appeal No. 67/P of 1978, decided on 18th March, 1979.

(Appeal against the judgment and order dated 15‑5‑78 of Peshawar High Court in C. R. 288175).

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑

---Sched., Part II ‑ Transfer of evacuee shop ‑ One A formerly transferee of shop in dispute but transfer cancelled due to A's failure to pay price of shop and shop transferred to first respondent in open public auction‑Shop inadvertently described by two numbers through a mistake of Settlement Department and first respondent unnecessarily dragged in uncalled for litigation taking undue advantage of mistaken numbering of shop and failing in such litigation failing party setting up his own mother and sisters to protract agony of first respondent by raising plea of not having been impleaded as parties‑High Court's order holding first respondent as lawful transferee, in circumstances upheld.

M. Qasim Imam, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th March, 1979.

‑‑The dispute in this case relates to an evacuee shop situated in the city of Peshawar. The main reason for which the parties herein have been litigating with each other over the said shop is because in the record of the Settlement Department it was described by two numbers, namely, CC‑45/7/1269 and CC‑45/11/1259/736. The judgment of the High Court would show that the shop was transferred to one Anwar Shah under No. CC‑45/11/1259/736 but since he failed to pay its price, it was cancelled from his name, and, thereafter, the same transferred to respondent Khawaja Muhammad Daud through a public auction in which he was the highest bidder. In due course, the P. T. D. of the shop in question was issued to him, and, consequently, he served on respondent Irshad Ahmad, who was in occupation of the shop, a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, intimating therein that he was now the owner, and, therefore, he should pay him the rent. It seems that Irshad Ahmad failed to pay the rent to respondent Khawaja Muhammad Daud, whereupon he filed an application against him in the Court of Rent Controller for his eviction, on the ground of default. In the written statement filed by him, Irshad Ahmad alleged inter alia that he was not in possession of Shop No. CC‑45/7/1269; that actually he was in possession of Shop No. CC‑45/ 11/1259/736 of which one Anwar Shah was the landlord and he the tenant of Anwar Shah. Upon these facts he pleaded that let the eviction application of Khawaja Muhammad Daud be allowed as he had no objection to his said application.

On 6‑1‑66 the learned Rent Controller accordingly allowed the applica tion of Khawaja Muhammad Daud but when the warrant of dispossession was issued by the Court, the said Anwer Shah filed objections in the proceedings saying that he was the owner of the shop, and, consequently, he could not be ejected from it. These objections were heard by the learned Rent Controller and dismissed. Against the said Order, Anwar Shah went in appeal to the Court of District Judge, Peshawar but his appeal was dismissed and thereafter Anwar Shah did not pursue the matter any further.

In the events that happened Irshad Ahmad then filed a suit in the Court of Civil Judge, Peshawar, for declaration that he was in possession of Shop No. CC‑45/11/1259/736 of which Anwar Shah was the landlord, and, consequently, he could not be ejected. from it in execution of the order of the learned Rent Controller. This suit was contested .by Khawaja Muhammad Daud and the same was dismissed. Irshad Ahmad then went in appeal to the Court of the District Judge and the same was allowed vide judgment dated 22‑5‑71. Against the said judgment, Khawaja Muhammad Dawood went in second appeal to the High Court and the same was allowed by a learned Single Judge who recorded the finding that‑

(1) the said both numbers actually belonged to one and the same shop;

(2) that late Amir Khan the father of Irshad Ahmad was the tenant for the said shop before it was transferred to Khawaja Muhammad Daud, and

(3) that Khawaja Muhammad Daud was the lawful transferee of the shop from the Settlement Department.

It thus happened that when the execution proceedings were taken in hand by Khawaja Muhammad Daud, the present petitioners who are the widow and two daughters of late Amir Khan filed objections in the executing Court on the ground, amongst others, that being the legal heirs of Amir Khan they would be statutory tenants in respect of the shop under section 2(i) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and consequently, Khawaja Muhammad Daud ought to have served them with section 30 notice without which he could not have sought the ejectment of Irshad Ahmad competently. These objec tions were heard by the executing Court and dismissed vide Order dated 26‑3‑74.

On appeal to the Additional District Judge, Peshawar, however, the petitioners succeeded with the result that the case was remanded by the learned Judge to the executing Court for taking fresh evidence on specified points. Being aggrieved of the said Order Khawaja Muhammad Daud filed a Revision Petition in the High Court which was allowed by a learned Single Judge vide his judgment dated 15‑5‑78. It is in this background that the petitioners have come up to this Court praying for leave to appeal against the impugned judgment of the High Court.

We have heard Mr. Karimullah Khan Durrani, the learned counsel for the petitioners. He conceded before us that respondent Irshad Ahmad is the son of the petitioner No. 1 and brother of petitioners Nos. 2 and 3. In these circumstances there seems, to be strength in the finding recorded by the learned Judge of the High Court to the effect that after having lost the protracted litigation, respondent Irshad Ahmad had evidently set up, the petitioners to help him retain the possession of the shop to the prejudice of Khawaja Muhammad Daud.

The trend of the litigation between the parties would show that respondent Irshad Ahmad does not seem to have been forthright in the stand taken by him that he was the tenant of Anwar Shah and hence, not liable to ejectment. The record would show that Anwar Shah was, no doubt, the transferee of the said shop at some stage, but since he could not pay the price of it, his transfer was cancelled and the shop subsequent transferred to Khawaja Muhammad Daud in an open public auction in which he was the highest bidder. From this it would follow that taking g undue advantage of the inadvertent mistake committed by the Settlement Department by describing the said shop by two numbers, first, Anwar Shah and Irshad Ahmad unnecessarily dragged Khawaja Muhammad Daud in uncalled for litigation and when they failed, Irshad Ahmad set up his own mother and two sisters to protract the agony of Khawaja Muhammad Daud. We are, therefore, satisfied that in this view of the matter the impugned Order passed by the High Court seems to be unexceptionable and calls for no interference from this Court. This petition, therefore, fails and is dismissed.

Petition dismissed.

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