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Civil Appeal No. 127 of 1980, decided on 24th June, 1986.

(On appeal from the judgment of Lahore High Court, Lahore, dated 30‑10‑1974 in Letters Patent Appeal No. 455 of 1966)

‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 11‑‑Leave to appeal granted to examine implications of allotment of property in the name of firm and whether partners therein would be benefited by such allotment.

‑‑‑Ss. 10 & 11‑‑Transfer of property‑‑Shop in dispute, which was originally allotted in 1948 to a firm through respondent, later on, when Settlement operation started, was divided in two equal parts, one whereof was transferred by Deputy Settlement Commissioner to appellants, who had by then become partners of firm in possession of property, and other to respondent‑‑Settlement Commissioner on revision from both parties dismissing revision of petitioner on basis of crucial date i.e. 20‑12‑1958 and holding that allotment and consequential possession in law on account of allotment orders was that of respondent‑‑On a second revision before Chief Settlement Commissioner, appellants, being partners of firm, were also treated as allottees in possession on crucial date‑ Property was divided into three parts and one portion was transferred each to two appellants and third to respondent‑‑Nothing was available to show that there was any special provision in partnership deed giving preference to respondents :n matter of allotment of shop nor any such covenant was nreF4sed from respondents side‑‑‑Held, appellants were not only partners of firm on crucial date but also in that capacity, they were allottees in possession of shop in dispute along with respondents‑‑All three contestants for transfer of shop were equally entitled to a share in shop in so far as its transfer under Displaced Persons (Compensation and Rehabilitation) Act was concerned‑‑Allotment and possession not being of defined portions, it was joint and their entitlement was also for a joint transfer‑‑Order of Chief Settlement Commissioner ; who treated appellants partners of firm and allottees in possession en crucial date, even if without jurisdiction, on account of admission of a second revision, had achieved ends of justice and that too in accordance with Settlement Laws in so far as substantial question of merit of transfer of property was concerned‑‑High Court in exercise of its discretionary writ jurisdiction was not bound to interfere with orders of Chief Settlement Commissioner even if order of Chief Settlement Commissioner was considered not to be strictly legal‑‑Writ issued by High Court recalled and order passed by Chief Settlement Commissioner restored with modification that instead of dividing shop in three portions, Settlement Authorities concerned would transfer whole of it jointly in favour of three contestants to be partitioned in future as and when parties so desire either out of Court or through Court.

‑‑‑Art. 199‑‑Constitutional jurisdiction‑‑Exercise of discretion‑‑Object of jurisdiction is to foster justice and right a wrong‑‑Even when an order impugned before High Court is found to be lacking in some legal or jurisdictional requirement, constitutional provision does not compel High Court to issue a writ much less that of certiorari or mandamus‑ Merits of case have also to be seen in order to examine whether discretion is to be exercised or not in favour of party successfully challenging legality of order impugned in writ jurisdiction‑‑If as a result of setting aside such an order, another order would be revived which would be unjust or unfair or otherwise also illegal then before setting aside first mentioned order, Court will have to examine more carefully question of exercise of discretion and in proper cases would decline to exercise discretion and would thus not set aside an order even if it is illegal provided setting aside of such an order would result, inter alia, in injustice or revive another illegal order

Begum Shams‑un‑Nisa v Said Akbar Abbasi and another P L D 1982 S C 413 and

Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236 rel.

‑‑‑Art. 199‑‑Writ jurisdiction‑‑Cannot be exercised in aid of injustice.

Mian Saeedur Rahman Farrukh, Advocate Supreme Court with Sh. Salahuddin, Advocate‑on‑Record (absent) for Appellants.

Hassan Ahmad Khan Kanwar, Advocate, Supreme Court with S. Inayat Hussain Shah, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 24th June, 1986.

This appeal through leave of the Court is directed against judgment, dated 30th of October, 1974, by the Lahore High Court; whereby appellants' Letters Patent Appeal against the acceptance of Abdul Majid's (respondent‑side) Constitutional Petition relating to the disposal of an evacuee property, was dismissed.

The dispute concerns the transfer of a big evacuee shop which is stated to be 20 feets wide and 30 feet in depth and there are roads on two sides thereof. Initially in 1948, it was allotted to a firm operating under the name and style of Messrs Friends Trading Company through Abdul Majid (predecessor‑in interest of respondents Nos. 1 to 9). There was some change of partners during the first few years of the working of the firm. Appellants Rehmat Ullah and Ghulam Rasool and some others had, of course along with Abdul Majid, joined the firm in this process. Subsequently in 1950 the partners appear to have constituted another firm under the name and style of Friends Trading Company Azad General Stores. There was considerable litigation between the contesting parties in regard to the allotment of the shop to the new firm or to the partners in their individual capacity.

In 1953 Abdul Majid applied for cancellation of allotment from the name of the firm to his name in his individual capacity. By order, dated 6/9‑2‑1953 a D.R.C. made allotment to him in his own name. The appellants filed an appeal against this order which was allowed by an Additional Rehabilitation Commissioner on 14‑9‑1959, with the order that the shop shall remain allotted in the name of the partnership. Abdul Majid filed a revision which was partly allowed on 18‑11‑1959, in that the allotment in the name of the firm was ordered to read as through Abdul Majid meaning thereby that the original position of allotment in the name of the firm "Friends Trading Company through Abdul Majid" was restored. This concluded the litigation with regard to allotment to one or the other party in this appeal.

Business was carried on by the partners i.e. appellant and Abdul Majid, in the name of the firm till 3rd April 1959 in this very shop when Abdul Majid effectively ousted the appellants and allegedly took over the stocks and records. The appellants sought police interference but without any results. Be that as it may, on 1‑6‑1959 Abdul Majid filed a suit for dissolution of partnership (which according to the learned counsel for the respondents was a partnership at will) as well as for rendition of accounts. In the plaint he admitted that the appellants were dispossessed on 3‑4‑1959. The suit was contested on behalf of the appellants with the plea that they were not the accounting party, Abdul Majid himself was to render accounts. A sole arbitrator was appointed who gave an award that the appellants were not liable to render accounts. The suit was accordingly dismissed on 18‑3‑1965. Appeal of Abdul Majid in this behalf was also dismissed on 10‑2‑1966. This finally ended the civil litigation between the parties.

When the settlement operation started, three C.S. Forms were filed: one, by Rehmat Ullah appellant; the second, by Nizam Din father of Ghulam Rasool appellant and the third, by Abdul Majid. By order, dated 4‑7‑1966. the D . S . C divided the shop in two equal parts, each facing a Bazar and transferred one to the appellants jointly and the other to Abdul Majid. Two cross appeals were filed against this order. They were dismissed by an Additional Settlement Commissioner on 24‑5‑1961. Then two cross revisions were filed. The revision of Abdul Majid was accepted and the entire shop was ordered to be transferred to him. The appellant's revision was dismissed. This was on the basis that on the crucial date i.e. 20th of December, 1958, the allotment and consequential possession in law on account of the allotment orders would be treated as that of Abdul Majid. The Settlement and Rehabilitation Commissioner in this behalf concluded as follows:‑

"In view of the fact that Ghulam Rasool and Rehmatullah petitioners have not been able to prove that they are allottees of the shop in question and were in exclusive possession of any portion of the property in dispute so the transfer of a portion of the shop in dispute in their favour is irregular."

The appellants then filed a second revision before the Chief Settlement Commissioner who held that the appellants being partners in the firm were also to be treated as allottees in possession on the crucial date i.e., 20th December, 1958. He divided the property into three parts and transferred one portion each to the three contestants, namely, Rehmat Ullah, Ghulam Rasool (l:izan, Din) and Abdul Majid. This order was passed on 14‑2‑1962. Abdul Majid filed a writ petition in the High Court which was accepted by a learned Single Judge on 1‑2‑1966 mainly on two grounds: One, that on account of an amendment in law second revision petition was not competent as the records of the case had not been summoned before the crucial date; and secondly, on the ground that the appellants were not in possession on the crucial date. The order passed by the Chief Settlement Commissioner was, thus set aside and the order passed by the Settlement Commissioner in first revision was restored.

The appellants filed a Letters Patent Appeal which having been dismissed, on jurisdictional point above they sought leave to appeal which was granted to examine the implications of the allotment of the property in the name of the firm and whether the partners therein would be benefited by such allotment.

We have heard both the learned counsel appearing for the parties at some length. There are certain undisputed facts which need to be re‑stated for a better understanding of the controversy between the parties.

Even if the appellants were not partners in the firm Messrs Trading Company, when the original allotment was made in 1948, in the name of the firm through Abdul Maiid they admittedly became partners in the firm within few years. Of course, other partners were also inducted during this period but the: not having come forward, it is not necessary to probe that aspect any further. Although the partnership's name and style was changed in 1950 but the fact remain that the appellant and Abdul Majid, amongst others. remained the member of the newly‑styled firm. It was in this context that Abdul Majid made an effort and succeeded in obtaining an order from the D.R.C. in 1953 for exclusive allotment of the shop to him. It is also admitted position that the appellants did not accept the fait accompli on the part of Abdul Majid and they challenged the order of D.R.C. in appeal and the matter also went up in revision; with the final result that the allotment was restored in the original form in the name of the Friends Trading Company through Abdul Majid. This happened in November, 1959. Undoubtedly, it was nearly a year after the target date regarding possession for transfer of evacuee properties, namely, 20th December, 1958. But the fact remains that the revisional order passed in 1959 shall have to be co‑related to the original order passed by the D.R.C. in 1953 and the revisional order shall be deemed to have substituted the said order from the date of that order namely, 9‑2‑1953. That being so, on the crucial date the allotment shall have to be treated in law to be in the name of the firm through Abdul Majid. And if the appellants were then the partners of the firm in possession of the shop they will be entitled to the joint ownership in the property, interest and rights of the firm. The allotment and possession in the context of law of transfer of evacuee property was undoubtedly a condition for transfer to which the contestant partners became entitled. Each of them, therefore, had a right in the transfer of the property. Some question has been raised that it was mere allotment that had been changed from time to time and that the possession had in the meanwhile been relinquished by the appellants in favour of Abdul Majid. This supposition is against the findings of fact by the final Settlement authority and also against the admission of Abdul Majid in the suit that he filed on 1‑6‑1959. In the plaint in paragraphs 1 and 5 he clearly admitted that the appellants remained partners in the firm till 3rd April, 1959 when they were successfully ousted by him. We, therefore, do not feel any hesitation in agreeing with the Chief Settlement Commissioner that the appellants were not only the partners of the firm on the crucial date but also that in that capacity they were allottees in possession of the shop in dispute along with Abdul Majid 1and other partners.

If this be the position, the next question arises whether the shop could be transferred in favour of one partner in preference to the other partners. Nothing has been said that there was any special provision in the partnership deed giving preference to Abdul Majid in the matter of allotment of the shop nor any such covenant has been pressed from the respondent side. That being so, each partner would have equal interest and right in the allotment and possession. This is obvious as stated above as there is nothing to the contrary in the partnership agreement. We, therefore, hold that all the three contestants for transfer of the shop were equally entitled to a share in the shop in so far as its transfer under the Displaced Persons Compensation and Rehabilitation) Act (No. XXVIII) of 1958 is concerned. The allotment and possession was not of the defined portions. It was joint. Therefore, the entitlement shall also be for a joint transfer. The Chief Settlement Commissioner was right in holding up to the stage that the two appellants and Abdul Majid were entitled to the transfer of the shop but he was wrong in assuming that each one of them was in possession of a specific portion. That condition lacking in this case, he could have ordered only a joint transfer of the shop in favour of the three contestants. Had he done so, the order would have been in accord with the Settlement laws

But the matter would not end here. Another point also prevailed with the High Court in setting aside the order of Chief Settlement Commissioner, namely, that on the date the second revisional order was passed namely, 14‑2‑1962, the records had not been summoned, therefore, the second revision petition on account of amendment of law was not competent. None of the learned counsel appearing before us contested the factual position that the records had not been summoned by the Chief Settlement Commissioner by the crucial date. Therefore, it seems, clear that he could not have exercised the revisional power. But this legal aspect of the case would not conclude the controversy.

Undoubtedly, the Constitutional jurisdiction under Article 199 of the Constitution in discretionary. Even when an order impugned before the High Court is found to be lacking it some legate or jurisdictional requirement, the Constitutional provision does not compel the High Court to issue a writ much less that of certiorari or mandamus. The merits of the case have also to be seen in order to examine whether the discretion is to be exercised or not in favour of the party successfully challenging the legality of the order impugned in writ jurisdiction. If the result is that by setting aside such an order another order would be revived which is unjust or unfair or is otherwise also illegal, then before setting aside the first mentioned order the Court will have to examine more carefully the question of exercise of discretion and in proper cases would decline to exercise the discretion and would thus not set aside and order even if it is illegal provided the setting aside of such an order would result, inter alia, in injustice or revive another illegal order. It was recently held in a case arising from disposal of evacuee property Begum Shams‑un‑Nisa v. Said Akbar Abbasi and another PLD 1982 S C 413 wherein similar situation had arisen that even assuming that the Settlement Commissioner in that case was competent to pass the order passed by him and also that the Chief Settlement Commissioner was not legally justified in declaring such an order as without lawful authority in exercise of his power under Act XXVIII of 1958, but the order of Chief Settlement Commissioner nevertheless was just and proper. And if the effect of setting aside the order of Chief Settlement Commissioner was to restore the unjust order of the Settlement Commissioner, the High Court ought not to have exercised its writ jurisdiction for bringing about such result. Since writ jurisdiction cannot be exercised in aid of injustice, it was clearly held that the High. Court in exercise of its discretionary writ jurisdiction not bound to interfere with the orders of Chief Settlement Commissioner. It would have been an improper exercised of discretion in case in hand even though that order of Chief Settlement Commissioner was considered not to be strictly legal. Law was laid to the same effect in Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236. It' was held that an order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought '' to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. Where, therefore, the High Court in its extraordinary constitutional writ jurisdiction had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal and without jurisdiction, it was held that it could legitimately refuse to set aside the order of the Officer‑on‑special‑duty (Central Record Office), even though the latter was clearly without jurisdiction.

Both the authorities are fully applicable in this case. The order of the Chief Settlement Commissioner in this case even if without jurisdiction had achieved the ends of justice and that too in accordance with the Settlement law in so far as the substantial questions of merit of transfer of property are concerned.

We, therefore, in the light of the foregoing discussion allow this appeal and recall the writ issued by the High Court. The order of the Chief Settlement Commissioner, dated 14‑2‑1962 is restored with the modification as 'discussed above that instead of dividing the shop into three portions, the Settlement Authorities concerned shall transfer the whole of it jointly in favour of the three contestants. It is clarified that we, after calling upon both the learned counsel to show whether such a joint transfer would create any impossible situation for the partition of the shop, amongst the three owners and having heard them on this question, are satisfied that keeping in view the site of the shop it will be easily liable to be partitioned in accordance with the law as and when the parties so desire to do so out of Court or through Court.

M. Y. H. Appeal allowed.

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