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Civil Petition for Special Leave to Appeal No. 32-R of 1980, decided on 2nd April, 1980.

(On appeal from the judgment and order of the Lahore High Court dated 27-1-1980 in W. P. No. 748-R of 1978).

--- Art. 199-Writ-Coming with unclean hands Petitioner's peti tion for leave against orders of Settlement Commissioner rejecting his claim for property in question dismissed in 1972 yet petitioner not informing High Court or Supreme Court as to his son having already obtained property in dispute against his claim-Association between petitioner's son and petitioner-A device to defeat Court's order-Writ petition, held, could, in circumstances, have been dismissed on short ground of petitioner having come to Court with unclean hands,

Ch. Abdul Rehman, Advocate and Ch. Akhtar Ali, Advocate on-Record for Petitioner.

Samad Mahmood, Advocate and Imtiaz Mahmood Khan, Advocate -on-Record for Respondents.

Date of hearing : 2nd April, 1980.

-The dispute in this petition for leave relates to a godown in Rawalpindi. The petitioner had been agitating his claim for this godown, but it was rejected by the Settlement Commis sioner who ordered the auction of the godown by his order dated 6th July, 1961. The petitioner unsuccessfully challenged this order in a writ petition in the High Court and learned counsel admitted that even the petition for leave filed by the petitioner against the judgments of the High Court had been dismissed by this Court in 1972. Therefore, the order for the auction of the godown had become final, but it was not carried out because the godown was transferred to the petitioner's son on 6tb December, 1968. Then, on a date which is not specified the petitioner entered into a deed of association with his son which was approved by the Settlement authorities therefore, the godown was transferred to the petitioner by a P. T. D. dated 10th May, 1973. And, for the purpose of this petition for leave it is sufficient to state that the petitioner then sold half the godown to one Muhammad Rafiq, and as the second respondent was in the occupation of the godown, Muhammad Rafiq obtained an eviction order against the second respondent, therefore, the second respondent filed an application before the first respondent bat the godown had been unlawfully transferred to the petitioner and the first respondent issued a notice to the petitioner. As the Evacuee Laws had been repealed by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (hereinafter called the said Act, the petitioner filed a writ petition in the Lahore High Court to challenge the validity of this notice.

The petition was contested by the second respondent, who contended that the petitioner's son had never filed a C. S. form for the godown, therefore, the P. T. D. issued to the petitioner had been obtained by fraud. The question turned upon the proper construction of sub section (2) of section 2 of the said Act, and, on the basis of a judgment pronounced earlier by him, the learned Judge, who heard the writ petition dismissed it. Aggrieved by this order, the petitioner has filed this petition for leave.

Mr. Abdul Rahman submitted that the observations of the learned Judge on the proper construction of subsection (2) of section 2 of the said Act were not correct and required further examination. No doubt the point thus raised is an important question of law and we are constrained to observe that the observations of the learned Judge in his earlier judgment in W. P. 889-R of 1977, on which he relied in the instant case, appear prima facie to be too wide. However, the allegation in the instant case, is that the petitioner bad obtained his P. T. D. by fraud because his son had never filed a C S form. We may observe here that Mr. Abdul Rahman denied this allegation. Be that as it may, the petitioner's petition for leave against the order of the Settlement Commissioner rejecting his claim for the godown had been dismissed in 1972, yet the petitioner had not informed the High Court or this Court that his son had already obtained the godown against his claim. In this back ground learned counsel for the caveators submitted that the association between the petitioner's son and the petitioner was a device to defeat this Court's order. It is this aspect of the case which disturbs us and we venture to think that the writ petition could have been dismissed on the A short ground that the petitioner had come with unclean hands. We are, therefore, of the view that it is not a fit case for the grant of special leave and we would leave open for an appropriate occasion the question of validity of the observation of the learned Judge in Writ Petition 889-R of 1977. The petition is therefore dismissed, but in the circumstances we clarify that the petitioner would be entitled to appear before the firs respondent without prejudice to his objection to the first respondent's jurisdiction under the said Act and if he is aggrieved by the order of the first respondent it would be open to him to challenge it according to law.

Petition dismissed.

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