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Writ Petition No. 1111/R of 1975, decided on 30th August, 1976.
‑‑ Art. 199‑Respondent given reasonable opportunity to produce necessary proof in support of his contention as to impugned order not amounting to final adjudication of matter but, as a matter of fact. an order of dismissal in default‑‑‑Discretion exercised by Settlement Commissioner in dismissing his application, held, in order and required no interference.
Ch. Qamar‑ud‑Din assisted by Abdur Rashid for Petitioners.
S. M. Rashid for Respondents.
Dates of hearing : 2nd, 28th April ; 31st May and I1th June, ‑1976.
On 13th February 1973, respondent No. 2 filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act) against the petitioners alleging thereby that their predecessor‑in‑interest Zain Khan, had filed claim form No.329 for Mauza Saidu and he bad been confirmed land there on 5th Feb ruary 1951. 1n addition to this, he obtained other area on another claim form bearing No. 5513, in Mauza Harwari. It was alleged that the subsequent allotment was without any entitlement and had been obtained fraudulently. Cognizance of this application was taken by the Addi tional Deputy Commissioner (Consolidation) with powers of Settlement Commissioner (Land), Sialkot, who on 25th January, 1975. passed the
following order :‑
On 21st March, 1975, the case was adjourned on 31stMarch,.1975, because the Presiding Officer was not available. On 31st March, 1975, the following order was passed :‑
After this order on 4th April, 1975, the respondent gave another application under sections 10 and 11 . of the Act, read with section 1‑A of Act XXXVI of 1974. As a matter of fact this application was for setting aside the previous order. This application was allowed by the Settlement Com missioner by his order dated 12th September, 1975.
2. The petitioners have challenged the aforesaid order on the ground that the case of their predecessor‑in‑interest was decided in the year 1955, which order was not challenged. It was next argued that the second application filed by the respondent on 4th April, 1975, was not competent because by that time the Act had been repealed. Learned coun sel further argued that the first application was decided on merits on 31st March, 1975 and hence the subsequent application could not be entertained.
3. On the other hand, learned counsel for the respondent submitted that the order dated 31st March, 1975 did not amount to final adjudi cation of the matter and as a matter of fact it was an order of dismissal in default, as such the respondent was well within his rights to file the subsequent application.
4. The only legal proposition to be examined is the implication of the order dated 31st March, 1975. If this order amounted to an order of dismissal in default then the respondent was well within his rights to request that the same be recalled, because his original application was filed when the Act had not been repealed, but if this was an order on merits then the application stood decided for all intents and purposes and the second application would not be competent under the garb of an app lication for setting aside the ex parte order.
The order dated 31st March, 1975, does not show that either the res pondent or his counsel was absent. On the other band it says :‑‑
which means tLut in spite of the fact that the respondent was given reasonable opportunity to produce necessary proof he failed to do so Therefore, it was within the discretion of the Settlement Commissioner either to grant him further adjournment or to dismiss the application. He chose the latter course which in my view finally decided the fate of the application. .
5. In view of this I do not think the subsequent application was competent. I would, therefore, allow this petition and declare the impug ned order to be without lawful authority and as such of no legal conseq uent. No orders as to costs.
M.Y.M. Petition accepted.
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